Proposed Sections 
 Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
 Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 22. EXAMINING BOARDS 
 Part XV. Texas State Board of Pharmacy 
  Chapter 291. Pharmacies 
  
  All Classes of Pharmacy 
 
  22 TAC sec.sec.291.5, 291.7, 291.12, 291.15-291.17 
 
  The Texas State Board of Pharmacy proposes amendments to  ssec.291.5, 291. 7, 
291.12, and 291.15-291.17, concerning Closed Pharmacies, Change of Pharmacist 
Employment, Fire or Other Disaster, Notification of Theft or Loss of a 
Controlled Substance, Definitions, and Controlled Substance Inventory 
Requirements. 
 These amendments if adopted will require pharmacies to: (1) inventory 
butorphanol (Stadolz), nalbuphine (Nubain) and carisoprodol (Soma) annually and 
on change of pharmacist-in-charge; and report a theft or significant loss of 
dangerous drugs. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary, has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be the protection of the health of the citizens of 
the State of Texas through better control of these drugs. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
 Comments may be submitted to Fred S. Brinkly, Jr., R.Ph., M.B.A., Texas State 
Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. 
 The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act; and sec.17(b), which provided the Board with the authority to specify the 
minimum standards for maintenance of prescription drug records in a pharmacy. 
 
 
  sec.291.5. Closed Pharmacies. <ol> The pharmacist-in-charge of a pharmacy that 
ceases to operate as a pharmacy, shall within 10 days of the cessation of 
operation, forward to the board a written notice of the closing which includes 
the following information: 
 
  (1)-(2) (No change.) 
   
  (3) a statement attesting that an inventory <nl>as specified in sec.291. 17 of 
this title (relating to Inventory Requirements)<ol> [of all controlled 
substances on hand] has been conducted; and 
   
  (4) (No change.) 
 
     
  sec.291.7. Change of Pharmacist Employment. 
 
  (a) (No change.) 
   
  (b) Change of pharmacist-in-charge of a pharmacy. 
 
  (1) On the date of change of the pharmacist-in-charge of a Class A (Community) 
or Class C (Institutional) Pharmacy, an inventory of the following [controlled 
substances] shall be taken: 
 
  (A) (No change.) 
   
  (B) all dosage forms containing pentazocine (<nl>e.g., <ol> Talwin); 
   
  (C) all dosage forms containing phentermine (<nl>e.g., <ol> Ionamin, Fastin, 
Adipex-P, etc.); 
   
  (D) all dosage forms containing diazepam (<nl>e.g., <ol> Valium); 
   
  (E) all dosage forms containing phendimetrazine ( <nl>e.g.,<ol> Bontril, 
Plegine, Prelu-2, etc.); 
   
  (F) all [oral liquid] dosage forms containing codeine; 
   
  (G) all dosage forms containing hydrocodone (<nl>e.g., <ol> Tussionex, 
Tussend, Vicodin, Hycomine, etc.); 
   
  (H)  all dosage forms containing alprazolam (<nl>e.g., <ol> Xanax); [and] 
   
  (I) all dosage forms containing triazolam (<nl>e.g., <ol> Halcion)[.] <nl>; 
   
  <nl>(J) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(K) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(L) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2)-(4) (No change.) 
 
       
  sec.291.12. Fire or Other Disaster. If a pharmacy experiences a fire or other 
disaster, the following requirements are applicable. 
 
  (1) Responsibilities of the pharmacist-in-charge. 
 
  (A) (No change.) 
   
  (B) The pharmacist-in-charge or designated agent shall comply with [one of] 
the following procedures. 
 
  (i) If controlled substances <nl>, dangerous drugs,<ol> or DEA order forms are 
lost or destroyed in the disaster, the pharmacy shall<nl>: 
 
  <nl>(I) notify the Drug Enforcement Administration (DEA), Department of Public 
Safety (DPS) and Texas State Board of Pharmacy (Board) of the loss of the 
controlled substances or order forms. A pharmacy shall be in compliance with 
this section by submitting to <nl>each of these agencies<ol> [the board] a copy 
of the Drug Enforcement Administration's report of theft or loss of controlled 
substances, DEA Form-106, <nl>immediately on discovery<ol> [within 1O days] of 
the loss<nl>; and 
   
  <nl>(II) notify the Texas State Board of Pharmacy in writing of the loss of 
the dangerous drugs by submitting a list of the dangerous drugs lost. 
     
  (ii) If the extent of the loss of controlled substances <nl>or dangerous 
drugs<ol> is not able to be determined, the pharmacy shall: 
 
  (I) take a new, complete inventory of all remaining  <nl>drugs specified in 
sec.291.17(c) of this title (relating to Inventory Requirements);<ol> 
[controlled substances; and] 
   
  (II) submit to DEA[,] <nl>and<ol> DPS [and the board] a statement attesting 
that the loss of controlled substances is indeterminable and that a new, 
complete inventory of all remaining controlled substances was conducted and 
state the date of such inventory[.] <nl>and 
   
  <nl>(III) submit to the board a statement attesting that the loss controlled 
substances and dangerous drugs is indeterminable and that a new, complete 
inventory of the drugs specified in sec.291.17(c) of this title was conducted 
and state the date of such inventory. 
       
  (C) (No change.) 
   
  (D) If the pharmacy moves to a temporary location, the pharmacist shall 
<nl>comply with  s291.2 of this title (relating to Change of Location and/or 
name). If the pharmacy returns to the original location, the pharmacist-in-
charge shall again comply with sec.291.2 of this title. <ol> [send written 
notification to the board of the change of address within 10 days and further, 
shall send written notification to the board of the return to the permanent 
location within 10 days of the return]. 
   
  (E)-(F) (No change.) 
     
  (2) (No change.) 
 
     
  sec.291.15. Notification of Theft or loss of a Controlled Substance <nl>or a 
Dangerous Drug. 
 
  <nl>(a) Controlled Substances. <ol>For the purposes of the Act, sec.32, 
subsection (a) the theft or significant loss of any controlled substance by a 
pharmacy shall be reported in writing to the board <nl>immediately on<ol> 
[within 10 days of] discovery of such theft or loss. A pharmacy shall be in 
compliance with this subsection by submitting to the board a copy of the drug 
enforcement administration report of theft or loss of controlled substances, DEA 
Form 106, or by submitting a list of all controlled substances stolen or lost. 
   
  <nl>(b) Dangerous Drugs. A pharmacy shall report in writing to the board 
immediately on discovery, the theft or significant loss of any dangerous drug by 
submitting a list of the name and quantity of all dangerous drugs stolen or 
lost. 
 
     
  sec.291.16. Definitions.  Any term not defined in this chapter shall have the 
definition set out in <nl>the Texas Pharmacy Act, sec.5 (Texas Civil Statutes, 
Article 4542a-1)<ol> [House Bill 1628, sec.5, Acts of the 67th Legislature, 
1981]. 
 
   
  sec.291.17. [Controlled Substances] Inventory Requirements. 
 
  (a)  General Requirements. 
 
  (1)-(4) (No change.) 
   
  (5) The inventory shall include all <nl>stocks of the following drugs <ol> 
[controlled substances] on hand on the date of the inventory (including any 
[controlled substances] which are out-of-date)<nl>:<ol> [.] 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (6) (No change.) 
   
  (7) The inventory record shall indicate whether the inventory is taken as of 
the opening of business or as of the close of business on the inventory 
date<nl>. If the pharmacy is open 24 hours a day, the opening of business shall 
be 12:01 a.m. and the close of business shall be 12 midnight. The inventory 
shall indicate that it is a record of drugs on-hand as of the opening or closing 
of the business day.<ol> [,with the following exceptions. 
 
  [(A) In a Class A (Community) Pharmacy that is open 24 hours a day, the 
inventory record shall indicate the prescription number of the last prescription 
filled during the inventory. 
   
  [(B) In a Class C (Institutional) Pharmacy that is open 24 hours a day, the 
inventory record shall indicate the time the inventory was completed.] 
     
  (8) The person(s) taking the inventory and the pharmacist-in-charge shall 
indicate the time the inventory was taken (as specified in paragraph (7) of this 
subsection) and shall sign and date the inventory with the date the inventory 
was taken. The signature of the pharmacist-in-charge and the date of the 
inventory shall be notarized within 72 hours or three working days of the 
completed <nl>initial,<ol> annual<nl>, change of ownership and closing<ol> 
[controlled substances] inventory. 
   
  (9) (No change.) 
   
  (10) The person(s) taking the inventory shall make an estimated count or 
measure of all substances listed in Schedule III, IV, or V <nl>and dangerous 
drugs <ol>, unless the container holds more than 1,000 tablets or capsules in 
which case, an exact count of the contents must be made. 
   
  (11) The inventory of Schedule I and II controlled substances shall be listed 
separately from the inventory of Schedule III, IV, and V controlled substances 
<nl>which shall be listed separately from the inventory of dangerous drugs. 
   
  (12) If the pharmacy maintains a perpetual inventory of <nl>any of the drugs 
required to be inventoried <ol> [controlled substances], the perpetual inventory 
shall be reconciled on the date of the inventory. 
     
  (b) Initial Inventory. 
 
  (1) A new Class A (Community) pharmacy or Class C (Institutional) pharmacy 
[that is registered under the Texas and Federal Controlled Substances Acts] 
shall take an inventory [of all controlled substances on hand] on the opening 
day of business. <nl>Such inventory shall include all stocks (including any out-
of-date drugs) of the following: 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2) In the event the Class A or C pharmacy commences business with <nl>none of 
the drugs specified in paragraph (1) of this subsection <ol> [no controlled 
substances] on hand, the pharmacy shall record this fact as the initial 
inventory. 
   
  (3) The initial inventory shall serve as the pharmacy's inventory until the 
next May 1, or until the pharmacy's regular <nl>general<ol> physical inventory 
date, at which time the Class A or C Pharmacy shall take an <nl>annual <ol> 
inventory <nl>as specified in subsection (c) of this section.<ol> [of all 
controlled substances on hand; the] <nl>Such<ol> inventory may be taken within 
four days of  <nl>the specified inventory<ol> [this] date <nl>and shall include 
all stocks (including out-of-date drugs). 
     
  (c) Annual Inventory. 
 
  (1) A Class A or C pharmacy shall take an inventory [of all controlled 
substances on hand (including any which are out-of-date)] on May 1 of each year, 
or on the pharmacy's regular general physical inventory date<nl>.<ol>[;] 
<nl>Such <ol> inventory may be taken within four days of <nl>the specified 
inventory <ol> [this] date <nl>and shall include all stocks (including out-of-
date drugs) of the following: 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2) A Class A or C pharmacy applying for renewal of a pharmacy license shall 
include as a part of the pharmacy license renewal application a statement 
attesting that an annual [controlled substances] inventory has been conducted, 
the date of the inventory, and the name of the person taking the inventory. 
     
  (d) Change of Ownership. 
 
  (1) A Class A or C pharmacy that changes ownership shall take an inventory of 
all <nl>of the following drugs<ol> [controlled substances] on hand (including 
any [controlled substances] which are out-of-date) on the date of change of 
ownership <nl>: <ol>[.] 
 
  <nl>(A) all controlled substances; 
   
  <nl>(B) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(C) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(D) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2)-(3) (No change.) 
     
  (e) Closed Pharmacies. The pharmacist-in-charge of a Class A or C pharmacy 
that ceases to operate as a pharmacy shall forward to the board, within 10 days 
of the cessation of operation, a statement attesting that an inventory of the 
<nl>drugs specified in subsection (c) of this section<ol> [controlled 
substances] on hand has been conducted, the date of closing, and a statement 
attesting the manner by which the <nl>dangerous drugs and<ol> controlled 
substances possessed by such pharmacy were transferred or disposed. 
   
  (f) Requirements for Class C (Institutional) Pharmacies. 
 
  (1) (No change.) 
   
  (2) Annual Inventory. 
 
  (A) An inventory shall be conducted [of all controlled substances on hand] on 
May 1 of each year, or on the pharmacy's regular general physical inventory 
date<nl>.<ol>[;] <nl>Such<ol> [the] inventory may be taken within four days of 
<nl>the specified inventory<ol> [this] date <nl>and shall include all stocks 
(including out-of-date drugs) of the following: 
 
  <nl>(i) all controlled substances: 
   
  <nl>(ii)<nl> all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(iii)<nl> all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(iv)<nl> all dosage forms containing carisoprodol (e.g., Soma). 
     
  (B) The annual inventory of the institution shall include all <nl>of the drugs 
specified in subparagraph (A) of this paragraph<ol> [controlled substances] on 
hand in the pharmacy. 
   
  (C) The inventory of the institution shall be maintained in the pharmacy; if 
an inventory [of controlled substances] is conducted in other departments within 
the institution, the inventory of the pharmacy shall be listed separately, as 
follows: 
 
  (i) the inventory of <nl>drugs<ol> [controlled substances] on hand in the 
pharmacy shall be listed separately from the inventory of <nl>drugs <ol> [the 
controlled substances] on hand in the other areas of the institution; and 
   
  (ii) the inventory of <nl>drugs<ol> [controlled substances] on hand in all 
other departments shall be identified by department. 
         
  (g) Change of pharmacist-in-charge of a pharmacy. 
 
  (1) On the date of change of the pharmacist-in-charge of a Class A (Community) 
or Class C (Institutional) pharmacy, an inventory of the following <nl>drugs<ol> 
[controlled substances] shall be taken: 
 
  (A)  (No change.) 
   
  (B) all dosage forms containing pentazocine (<nl>e. g.,<ol> Talwin); 
   
  (C) all dosage forms containing phentermine (<nl>e. g.,<ol> Ionamin, Fastin, 
Adipex-P, etc.); 
   
  (D) all dosage forms containing diazepam (<nl>e g.,<ol> Valium); 
   
  (E) all dosage forms containing phendimetrazine ( <nl>e.g.,<ol> Bontril, 
Plegine, Prelu-2, etc.); 
   
  (F) all [oral liquid] dosage forms containing codeine; 
   
  (G) all dosage forms containing hydrocodone (<nl>e.g., <ol> Tussionex, 
Tussend, Vicodin, Hycomine, etc.); 
   
  (H)  all dosage forms containing alprazolam (<nl>e.g., <ol> Xanax); [and] 
   
  (I) all dosage forms containing triazolam (<nl>e. g.,<ol> Halcion)[.] <nl>; 
   
  <nl>(J) all dosage forms containing butorphanol (e.g., Stadol); 
   
  <nl>(K) all dosage forms containing nalbuphine (e.g., Nubain); and 
   
  <nl>(L) all dosage forms containing carisoprodol (e.g., Soma). 
     
  (2)-(4) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 3, 1993. 
 TRD-9319719 
  Fred S. Brinkley, Jr., R.Ph., M.B.A. 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
               
  All Classes of Pharmacy 
 
  22 TAC sec.291.11 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Texas State 
Board of Pharmacy or in the Texas Register office, Room 245, James Earl Rudder 
Building, 1019 Brazos Street, Austin.) 
   
  The Texas State Board of Pharmacy proposes the repeal of  sec.291.11 
concerning Regulation. 
 The repeal of this section if adopted will eliminate a section of the rules 
which is no longer necessary because of adoption of other rules. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary has 
determined that for the first five-year period the repeal is in effect there 
will be no fiscal implications as a result of enforcing or administering the 
repeal. 
 Mr. Brinkley also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal as proposed will be the protection of the health of the citizens of the 
State of Texas through establishment of standards for pharmacy operations. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the repeal as proposed. 
 Comments may be submitted to Fred S. Brinkley, Jr., R.Ph., M.B.A., Texas State 
Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. 
 The repeal is proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act. 
 
 
  sec.291.11. Regulation. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 2, 1993. 
 TRD-9319722 
  Fred S. Brinkley, Jr., R.Ph., M.B.A 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
           
  Community Pharmacy (Class A) 
 
  22 TAC sec.sec.291.32, 291.34, 291.36 
 
  The Texas State Board of Pharmacy proposes amendments to  ssec.291.32, 291.34, 
and 291.36, concerning Personnel, Records, and Class A Pharmacies Compounding 
Sterile Pharmaceuticals. 
 These amendments if adopted will correct references to rule citations in the 
Class A Pharmacy rules in conjunction with amendments to the rules relating to 
inventory requirements. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary, has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be the protection of the health of the citizens of 
the State of Texas through the adoption of rules governing the operation of 
Class A Pharmacies. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Comments may be submitted to Fred S. Brinkley, Jr., R.Ph., M.B.A., Texas State 
Board of Pharmacy, 8505 Cross Park Drive, Suite 110 Austin, Texas 78754-4533. 
 The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act; and sec.17(b), which provided the Board with the authority to specify the 
minimum standards for maintenance of prescription drug records in a pharmacy. 
 
 
  sec.291.32. Personnel. 
 
  (a) Pharmacist-in-charge. 
 
  (1)  General. 
 
  (A) (No change.) 
   
  (B) The pharmacist-in-charge shall comply with the provisions of sec.291.17 of 
this title (relating to [Controlled Substances] Inventory Requirements). 
       
  (b)-(d) (No change.) 
 
     
  sec.291.34. Records. 
 
  (a)-(f) (No change.) 
   
  (g) Other Records. Other records to be maintained by the pharmacy: 
 
  (1)-(5) (No change.) 
   
  (6) a hard-copy of [controlled substance] inventories required by sec.291.17 
of this title (relating to [Controlled Substances] Inventory Requirements); 
   
  (7)-(10) (No change.) 
     
  (h)-(j) (No change.) 
 
     
  sec.291.36. Class A Pharmacies Compounding Sterile Pharmaceuticals. 
 
  (a)-(b) (No change.) 
   
  (c) Personnel. 
 
  (1)  Pharmacist-in-charge. 
 
  (A) General. 
 
  (i) (No change.) 
   
  (ii) The pharmacist-in-charge shall comply with the provisions of sec.291.17 
of this title (relating to [Controlled Substances] Inventory Requirements). 
     
  (B) (No change.) 
     
  (2)-(4) (No change.) 
     
  (d) (No change.) 
   
  (e) Records. 
 
  (1)-(8) (No change.) 
   
  (9) Other Records. Other records to be maintained by the pharmacy: 
 
  (A)-(E) (No change.) 
   
  (F) a hard-copy of [controlled substance] inventories required by sec.291.17 
of this title (relating to [Controlled Substances] Inventory Requirements); 
   
  (G)-(I) (No change.) 
     
  (10)-(11) (No change.) 
     
  (f) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 2, 1993. 
 TRD-9319723 
  Fred S. Brinkley, Jr., R.Ph., M.B.A 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
               Chapter 303. Destruction of Dangerous Drugs and Controlled 
Substances 
  
  22 TAC sec.303.1, sec.303.2 
 
  The Texas State Board of Pharmacy proposes amendments to  s303.1 and 
sec.303.2, concerning Destruction of Dispensed Drugs and Disposal of Stock 
Prescription Drugs. 
 These amendments if adopted will outline procedures for the destruction of 
butorphanol (Stadol), nalbuphine (Nubain) and carisoprodol (Soma) and require a 
pharmacy to maintain a record of destruction of these drugs. 
 Fred S. Brinkley, Jr., R.Ph., M.B.A., executive director/secretary has 
determined that for the first five-year period the sections are in effect there 
will be no fiscal implications as a result of enforcing or administering the 
sections. 
 Mr. Brinkley also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be the protection of the health of the citizens of 
the state of Texas through better control of the destruction of these drugs. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Fred S. Brinkley, Jr., R.Ph., 
M.B.A., Texas State Board of Pharmacy, 8505 Cross Park Drive, Suite 110, Austin, 
Texas 78754-4533. 
 The amendments are proposed under the Texas Pharmacy Act (Texas Civil Statutes, 
Article 4542a-1) sec.16(a), which provides the Texas State Board of Pharmacy the 
authority to adopt rules for the proper administration and enforcement of the 
Act; and sec.17(b), which provided the Board with the authority to specify the 
minimum standards for maintenance of prescription drug records in a pharmacy. 
 
 
  sec.303.1. Destruction of Dispensed Drugs. 
 
  (a) (No change.) 
   
  (b) Drugs Returned to a Pharmacy. A pharmacist, licensed by the board, is 
authorized to destroy dangerous drugs and controlled substances which have been 
previously dispensed to a patient and returned to a pharmacy by the patient or 
an agent of the patient. The following procedures shall be followed in 
destroying these drugs. 
 
  (1) Dangerous Drugs other than tripelennamine (<nl>e.g., <ol> PBZ), 
butorphanol ( <nl>e.g.,<ol> Stadol), [and] nalbuphine (<nl>e.g.,<ol> Nubain) 
<nl>, and carisoprodol (e.g., Soma). 
 
  (A)-(B) (No change.) 
     
  (2) Controlled Substances and tripelennamine (<nl>e.g., <ol> PBZ), butorphanol 
( <nl>e.g.,<ol> Stadol), [and] nalbuphine (<nl>e.g.,<ol> Nubain) <nl>, and 
carisoprodol (e.g., Soma). 
 
       
  sec.303.2. Disposal of Stock Prescription Drugs. 
 
  (a) (No change.) 
   
  (b) Disposal of stock dangerous drugs. A pharmacist, licensed by the board, is 
authorized to destroy stock dangerous drugs owned by a licensed pharmacy if such 
dangerous drugs are destroyed in a manner to render the drugs unfit for human 
consumption; provided, however, the following procedures shall be followed in 
destroying any brand or dosage form of tripelennamine ( <nl>e.g. ,<ol> PBZ), 
butorphanol (<nl>e.g.,<ol> Stadol), [and] nalbuphine (<nl>e.g., <ol> 
Nubain)<nl>, and carisoprodol (e.g., Soma). 
   
  (c) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 3, 1993. 
 TRD-9319720 
  Fred S. Brinkley, Jr., R. Ph., M.B.A. 
 Executive Director/Secretary 
 Texas State Board of Pharmacy 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 832-0661 
         
                 
  TITLE 25. HEALTH SERVICES 
 Part II. Texas Department of Mental Health and Mental Retardation 
  Chapter 407. Internal Facilities Management 
  
  Financial Services 
 
  25 TAC sec.sec.407.1-407.6, 407.22-407.24 
 
  The Texas Department of Mental Health and Mental Retardation (TXMHMR) proposes 
amendments to sec.sec.407.1-407.6 and  ssec.407.22-407.24, concerning standard 
operating procedures and accounting. The sections would be consolidated as 
financial services under an undesignated head. 
 The proposed amendments would primarily provide more comprehensive guidelines 
and uniform procedures for fiscal operations of the department. Clarifying 
language would be added to sec.sec.407.1-407.6, and sec.sec.407.22-407. 24. The 
proposed amendments in  s407.2 would add provisions concerning the disposal of a 
deceased client's trust fund when a demand is made. Section 407. 2(d) would be 
expanded to include two methods of earning interest and would allow for a non-
specific period for interest to be prorated. Section 407.3 would require all 
funds which are required to be deposited in the State Treasury be deposited 
within three days of receipt. For clarification, the titles of sec.sec.407.22-
407.24 would be changed from Patients Trust Fund to Trust Fund Procedures; 
Patient Benefit Fund to Benefit Fund Procedures; and Processing Vouchers and 
Warrants after Death of Payee to Processing Warrants and Vouchers after Death of 
Payee, respectively. 
 Leilani Rose, director, Financial Services, has determined that there will be 
no additional fiscal cost to state or local government as a result of 
administering the amendments as proposed. There will be no significant local 
economic impact. 
 Ms. Rose also has determined that the public benefit is the more uniform 
procedures for fiscal operations. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the amendments as proposed. 
 Comments on the proposed amendments may be submitted to Linda Logan, Director, 
Policy Development, Texas Department Mental Health and Mental Retardation, P.O. 
Box 12668, Austin, Texas 78711-2668, within 30 days of publication. 
 The amended sections are proposed under the Texas Health and Safety Code, Title 
7, sec.532.015, which provides the Texas Board of Mental Health and Mental 
Retardation with rulemaking powers. 
 
 
  sec.407.1. Purpose.<nl> This document has been established to provide written 
guidelines for fiscal operations. The intention is to impart enough information 
that an employee new to this system will be able to accomplish the tasks they 
need to perform. Although this manual is not all encompassing, it should provide 
either the answer to a question or be able to direct an individual to the proper 
source. These procedures are intended to be a meaningful guide in carrying out 
the fiscal responsibilities of the Texas Department of Mental Health and Mental 
Retardation. The procedures for accounting, budgeting, and wage and salary have 
been developed primarily to provide for uniform procedures of reporting 
financial data that is accurate, compatible, and comprehensive. Uniform 
procedures are necessary for effective fiscal control, increased operating 
efficiency through comparative analysis, support for appropriation requests, and 
accurate public information. Uniformity of business practices and of accounting, 
payroll, and budgeting procedures as applied to the departmental operations must 
be maintained. It is imperative that administrative personnel become familiar 
with the procedures outlined and comply with them in every respect. Any 
departure that seems necessary should be explained in writing to the Director, 
Financial Services, Central Office. In the event questions arise which are not 
addressed in this document, or cannot be resolved based on accepted business 
principles and practices, the Director of Financial Services or the Chief of 
Accounting Systems Management Section, should be consulted.<ol> [Standard 
operating procedures have been established primarily to cite the principles to 
be followed in certain areas of administrative concern. The topics in this 
subcategory may expand on topics referred to in other categories and may 
likewise be treated in more detail in other subcategories. Standard operating 
procedures are intended to be a flexible and meaningful guide in carrying out 
the responsibilities of the Texas Department of Mental Health and Mental 
Retardation. Each section should be recognized as a part of the whole and should 
be used in coordination with other sections, as well as with existing statutes 
and the current appropriation bill. It is intended to be an active guide, to be 
changed as often as necessary. Suggestions for changes or amendments are invited 
and will be given most careful consideration]. 
 
   
  sec.407.2. Trust Funds and Personal Effects. 
 
  (a) <nl>All funds received at the facility for the personal use of an 
individual client who has given consent for the facility to administer the 
client's personal trust funds will have their funds deposited to the client 
trust fund. <ol> [All funds received for the use or benefit of specific persons 
shall be considered as patient trust funds. All funds received are subject to 
any restriction imposed by donor or grantor.] These funds shall be deposited in 
national or state banks [in the immediate area] that are insured by the Federal 
Deposit Insurance Corporation[,] or in savings and loan associations domiciled 
in the State of Texas that are insured by the Federal Savings and Loan Insurance 
Corporation. 
   
  (b) <nl>At least<ol> [Not less than] 75% of the balance of the total amount 
held in trust at each facility shall be invested with insured Texas financial 
institutions [in time deposit certificates, savings accounts, or with the 
Central Office investment plan. The rate of return and the availability for 
withdrawal in case of emergency shall be considered in making the selections. As 
much of the remaining balance that is not required for current distribution 
should also be invested. Any exception to the minimum investment of 75% for a 
particular facility must be approved by the deputy commissioner for management 
and support]. <nl>Any remaining balance that is not required for current 
operations of the trust fund shall also be invested. 
   
  (c) <nl>Each client trust fund account is separately insured by the Federal 
Deposit Insurance Corporation or the Federal Savings and Loan Insurance 
Corporation provided that adequate trust fund records are maintained by the 
facility.<ol> [Subject to maintenance of adequate facility records of patient 
trust funds, each individual is separately insured by the Federal Deposit 
Insurance Corporation and the Federal Savings and Loan Insurance Corporation.] 
This makes it possible to maintain the trust fund balance in one demand deposit 
account, bank investment account,  <nl>and/<ol>or savings and loan account. 
   
  (d) Earnings from the investment of <nl>pooled <ol> trust funds are to be 
<nl>prorated<ol> [allocated] to individual client trust fund accounts in <nl>one 
of<ol> the following  <nl>ways<ol> [manner]: 
 
  (1) <nl>prorated to each client on an actual interest-earned basis; or<ol> 
[For each state fiscal quarter, the interest collected from the investment of 
client trust funds (including constructive receipt) will be allocated to clients 
on the basis of the average balance in the account of each client. The average 
balance will be determined by averaging the monthly balances for the three 
months of the quarter. The monthly balance should be that of the last day of the 
month. The allocation process should include all clients who had a balance on 
the last day of the quarter.] 
   
  (2)  <nl>prorated to each client on the basis of the average monthly balance 
for the period of proration. <ol> [As the interest for a quarter is collected, 
it should be accumulated in a special trust fund account to be distributed to 
the individual client trust fund accounts at the end of the quarter.] 
   
  [(3) Investment should be planned so that some interest will be collected each 
month or quarter and so that there will be an equitable allocation of interest 
to all clients and also an equitable allocation over several fiscal quarters.] 
     
  (e) <nl>When a client dies and there are funds remaining in the client's trust 
fund, such funds should be disposed of as follows: 
 
  <nl>(1) where no demand is made for disbursement of funds remaining in the 
deceased client's account, the facility should dispose of such funds in 
accordance with the Texas Health and Safety Code, sec.551.005. The facility 
shall hold such funds in the client's trust fund account for a period of three 
years. If at the end of three years, no demand has been made for disbursement of 
the funds, the facility shall turn such funds over to the State Treasurer. The 
State Treasurer shall hold the funds for a period of five years; and if, at the 
end of that five year period, no demand has been made, the funds shall escheat 
to the State and shall become a part of the General Fund; 
   
  <nl>(2) where demand is made, the facility may release the deceased client's 
funds in one of the following ways. 
 
  <nl>(A) The facility shall require the claimant to produce a copy of the small 
estates affidavit which has been filed in and approved by the probate court and 
certified by the clerk of said court in order to prove that the claimant has 
been authorized to collect the assets or a portion of the assets of the deceased 
client's estate. 
   
  <nl>(B) The facility shall release any remaining trust funds to such guardian. 
In order to prove that the person claiming the remaining trust funds is the 
guardian of the deceased client's estate, the facility shall require the 
claimant to provide letters of guardianship which indicate that the claimant is 
guardian of the deceased client's estate. 
   
  <nl>(C) The facility shall release any remaining trust funds to the 
representative appointed by the probate court to administer the estate. The 
facility shall require the representative to produce testamentary letters or 
letters of administration in order to prove that the representative has been 
authorized by the probate court to collect all assets of the deceased client's 
estate. 
   
  <nl>(D) If the probate court has determined that there is no necessity for 
administration of the deceased client's estate, the facility shall release any 
remaining trust funds to the distributees of the deceased client. The facility 
shall require a claimant to produce the court order refusing application for 
administration in order to prove that the claimant is collecting the remaining 
trust funds pursuant to the Texas Probate Code, sec.180. In the event the court 
order does not set forth the manner in which the assets of the deceased client's 
estate are to be distributed, the facility shall require the claimant to obtain 
a court order which shows that the claimant has been determined by the probate 
court to be a lawful heir of the deceased client's estate. 
   
  <nl>(E) When any questions arise concerning the proper distribution of assets 
remaining in a deceased client's trust fund, the facility is advised to seek 
legal counsel. 
   
  <nl>(F) In cases where the remaining funds are $100 or less and the facility 
feels reasonably sure that the person claiming the funds is the lawful heir and 
there would probably not be a future dispute over distribution of said funds, 
the facility may use its discretion as to whether to distribute the funds with 
the caveat that the release of such funds would be without any legal protection 
from potential liability by wrongfully distributing assets of the estate. 
     
  (3) Exceptions. Any funds deposited in a deceased client's trust fund pursuant 
to a specific trust arrangement or any funds which have been designated for a 
specific purpose by the facility prior to the death of the client shall be 
disposed of pursuant to the terms of that arrangement or pursuant to the purpose 
designated by the facility. Examples would include where funds are specifically 
set aside by a grantor for funeral expenses or where the facility has designated 
specific funds prior to the death of the client to be used to pay funeral 
expenses. 
   
  (4) In order to comply with the Texas Department of Human Services' rules 
concerning funds of deceased clients, the facility should, within 45 days after 
the death, forward a notarized affidavit outlining the disposition of the 
funds<ol> [Trust funds and any personal property held by the superintendent for 
a client who has died, has taken unauthorized departure, been discharged, or 
furloughed, will be disposed of as directed by Texas Civil Statutes article 
3l83c, sec.3]. 
 
       
  sec.407.3. Deposit and Investment of Funds. 
 
  (a) All funds received shall be deposited with the state treasurer or in a 
national or state bank which is a member of the Federal Deposit Insurance 
Corporation or in a savings and loan institution which is a member of the 
Federal Savings and Loan Insurance Corporation. The balance of any bank account 
must never exceed the FDIC/FSLIC-insured limit unless it is secured by a bank 
pledge of collateral under the provisions of Texas Civil Statutes, Article 342-
603. All funds which are required to be deposited in the State Treasury must be 
deposited within <nl>three<ol> [seven] days of receipt. 
   
  (b)-(f) (No change.) 
   
  (g) A register of all investments shall be maintained in the office of the 
business manager<nl>/assistant superintendent for administration <ol>. It shall 
include a description of each investment, the amount and date, interest due 
dates, interest paid dates, maturity date, and reinvestment information. The 
business manager<nl>/assistant superintendent for administration <ol> shall use 
this register to verify collection of income and principal and to plan the 
investment program. 
 
     
  sec.407.4. Benefit Funds: Use and Control. 
 
  (a) The Texas Health and Safety Code, sec.551.004, provides that the 
superintendent <nl>/director<ol> shall be the trustee of a special fund to be 
designated the benefit fund. <nl>The superintendent/director <ol> ["He] may 
expend the <nl>monies<ol> [moneys] in any such fund for the education or 
entertainment of the <nl>clients of the facility<ol> [inmates of the 
institution,] or for the actual expense of maintaining the fund at the 
institution.["] 
   
  (b)  The source of benefit funds are: 
 
  (1) private donations or gifts; 
   
  (2) interest earned from investment of benefit funds; 
   
  (3)  proceeds, rentals, or commissions received from vending machines; 
   
  (4)  proceeds, rentals, or commissions received from pay station telephones. 
     
  (c) Except for specific purpose funds, benefit funds may be used only for the 
purposes of education or entertainment of clients as a body. Each expenditure 
must be of general benefit to the population of the facility. This does not mean 
or imply that every client must benefit from each expenditure from the benefit 
fund. The guiding principle in the expenditure of these funds is that no 
partiality or preferential treatment is shown individuals or selected groups of 
clients. Expenditures from benefit funds must be properly documented to show the 
exact purpose and, if practical, to show the name of the clients benefiting from 
the expenditure. 
   
  (d) The following are examples of expenditures that meet the requirement 
pertaining to education or entertainment: 
 
  (1) purchase of supplies for a <nl>client <ol> merit/demerit system; 
   
  (2)-(6) (No change.) 
   
  (7) playground equipment, T.V. sets, record players, <nl>and<ol> stereos, for 
use by the clients as a whole <nl>in the living areas<ol> [on the wards or 
dormitories]; 
   
  (8) (No change.) 
     
  (e)-(f) (No change. ) 
   
  (g) The chaplain fund is a special purpose fund which may be provided for 
recording contributions at religious services and special gifts designated for 
such fund by the donor. The following lists indicate the approved source for 
purchase of chaplaincy equipment and supplies. While most of the items listed in 
paragraphs (2) and (3) of this subsection would be considered in the categories 
of "education or entertainment" under the procedure for handling benefit funds, 
the proper handling of a chaplain's fund must be based on the understanding by 
the donors that the funds will be used for the purposes which are listed. 
Expenditures from the fund should be limited to the items on the list which have 
been approved by the chaplains, the advisory committee, or the chaplain 
coordinator. 
 
  (1) [Necessary] <nl>Items<ol> [items] to be provided by the facility: 
 
  (A)-(L) (No change.) 
   
  (M) <nl>public address<ol> [PA] system; 
   
  (N) (No change.) 
   
  (O) counseling room <nl>for living areas<ol> [on each ward]; 
   
  (P)  (No change.) 
     
  (2) <nl>Items to be provided by facility if current appropriations are 
available <ol> [Very helpful items to be provided by facility funds, if 
available,] or through donations to Protestant or Catholic chaplain's fund. 
Items in paragraph (1) of this subsection are also included here if current 
appropriations are not available: 
 
  (A)-(B) (No change.) 
   
  (C) religious books for medical and <nl>client <ol> [patient] libraries; 
   
  (D)-(I) (No change.) 
   
  (J) pianos for <nl>living areas <ol> [dayrooms and dorms]; 
   
  (K)-(M)  (No change.) 
   
  (N) small hymnals for <nl>living areas <ol> [ward and dorm services]; 
   
  (O)-(P) (No change.) 
   
  (Q) communication system for religious broadcasts to <nl>clients<ol> 
[patients]; 
   
  (R)-(T) (No change.) 
     
  (3) Important items for chaplaincy ministry cannot be the responsibility of 
the facility and must come from <nl>the <ol> Protestant or Catholic chaplain's 
fund or other types of gifts (most of the following items become the property of 
clients<nl>): 
 
  (A) Bibles and New Testaments (Roman Catholic and Protestant <nl>-<ol>[) 
(]Spanish and English); 
   
  (B)-(U) (No change.) 
       
  (h) In accordance with approved procedures, all receipts should be deposited 
in a bank account and all expenditures should be made by check signed by the 
business manager<nl>/assistant superintendent for administration <ol> or 
administrator and countersigned by the superintendent [or ]<nl>/<ol>director 
<nl>or designees<ol>. Approved purchasing procedures applicable to other funds 
should be adhered to in every respect. 
   
  (i)  The actual expense of maintaining benefit funds may include expenditures 
to cover administrative errors which arise in the administration or disbursement 
of benefit funds and trust funds, provided the following restrictions are met: 
 
  (1)-(6) (No change.) 
   
  (7) employees responsible for administrative errors in the administration or 
disbursement of benefit funds and trust funds may be subject to disciplinary 
action <nl>as described in the department's Personnel Operation Instruction, 
406-3<ol> [under sec.3.112-4 (relating to Dismissal for Cause) of the Personnel 
Manual]. 
 
       
  sec.407.5. Mail Opening Procedures. 
 
  (a) Control of incoming monies. All mail addressed to the offices of cashier, 
claims, trust fund, canteen, business manager<nl>/assistant superintendent for 
administration<ol>, accounting, and sheltered workshop, except mail marked 
"personal" or "confidential," shall be opened centrally by two employees, one of 
<nl>whom<ol> [which] shall be <nl>the designated cashier<ol> [an employee of the 
cashier's office]. The purpose of the central mail opening procedure is to 
maintain control over incoming monies. Employees of these offices shall have the 
right to be present when mail addressed to them by name is opened. 
   
  (b) Mail addressed to the superintendent<nl>/director <ol>. All mail addressed 
to the superintendent<nl>/director <ol> which obviously contains monies, such as 
checks from the Social Security Administration, should be opened through the 
central mail opening procedure. All other mail addressed to the 
superintendent<nl>/director<ol> shall be delivered to his office unopened. 
   
  (c) Employee mail. Generally, all mail addressed to all other employees shall 
be delivered unopened to the individuals. <nl>Employees should not have personal 
mail addressed to facility unless living on grounds. 
   
  (d) Authority to open mail. The superintendent/director shall maintain 
authority to open any mail addressed to an employee, office or section of the 
facility (except personal mail to  <nl>employees<ol> [an employee] living on the 
grounds or <nl>their<ol> [his] family or mail marked "personal" or 
"confidential") when such action may be deemed in the best interest of the 
facility to maintain fiscal control over monies belonging to the facility <nl>, 
clients<ol> [or residents] or to control contraband. Mail addressed to an 
employee (except that indicated in subsection (a) of this section) shall be 
opened only in the presence of the employee. The indiscriminate opening of an 
employee's mail on a routine basis will not be condoned. 
   
  (e) (No change.) 
   
  (f) Client mail. 
 
  (1) All client mail shall be delivered unopened to the client, except as 
currently provided in <nl>departmental rules relating to mail opening 
procedures<ol> [Chapter 405, Subchapter M (relating to Mail Opening 
Procedures)]. 
   
  (2) Families of the <nl>resident<ol> clients [of the facilities] shall be 
informed that the facility is not responsible for funds mailed directly to the 
client. They should also be informed of the availability of the trust fund as a 
method of protecting personal funds for the client. Families should be advised 
to send all monies, either checks or cash, to the cashier <nl>and<ol>[,] not to 
<nl>department<ol> [individual departmental or ward] employees. 
 
       
  sec.407.6. Commercial Solicitation on Grounds. Commercial solicitation on the 
grounds of the state facility shall be only in accordance with the instruction 
and direction established by the superintendent<nl>/director<ol>. Such 
solicitation should be at times and places specifically authorized for that 
special area of concern. For instance, general salesmen should be directed to 
the purchasing and supply office. Drug salesmen should be given instructions as 
to what times and at what places they may meet with the formulary committee or 
the pharmacist. <nl>Employees are to be reminded<ol> [It is important, however, 
that salesmen should not be allowed to wander freely throughout the grounds or 
wards. In this regard it is important to remind employees of the facility] that 
they are prohibited by law from accepting gifts from salesmen or others. If such 
gifts are offered, they must either be rejected or handled as any other donated 
item to the facility. 
 
   
  sec.407.22.[Patients] Trust Fund <nl>Procedures. 
 
  (a)  Amounts received for benefit of clients specified by name are recorded in 
patients trust fund accounts. A subsidiary ledger <nl>account<ol> [sheet] is 
established for each client and any restriction imposed by the donor is recorded 
on that ledger <nl>account<ol> [sheet]. Each receipt or disbursement is posted 
to that ledger <nl>account<ol> [sheet]. Funds received for the general use of 
clients are considered as patient benefit funds. (See [Directive 2.7, also known 
as]  s407.23 of this title (relating to [Patient] Benefit Fund 
<nl>Procedures<ol>). 
 
  (1) (No change.) 
   
  (2)  Disbursements from patient trust funds are made for canteen merchandise 
coupons, cash <nl>withdrawals <ol> given to client and cash given to an employee 
to make an authorized purchase for a client or pay a client debt. The request 
for disbursement is approved by the subsidiary ledger clerk as to availability 
of funds and absence of donor restrictions; the cashier <nl>then<ol> makes the 
disbursement and secures supporting documentation. 
 
  (A) If cash is given to the client the client may sign beside an entry on 
<nl>the<ol> [a] list of disbursements. When authorized purchases are made for a 
client, sales slips, receipted bills, or other vouchers signed by the client 
<nl>(<ol>or two employees acting for the client<nl>)<ol> are secured, posted to 
the subsidiary ledger, and filed in support of the check voucher in the same 
manner as cash receipts are filed with the cash voucher. 
   
  (B)  A cash withdrawal request list or a canteen merchandise coupon request 
list may be prepared for several clients and the total disbursed by the cashier 
to an authorized employee.  <nl>This<ol> [Such] list shall provide space for the 
client's signature or mark. Two employees shall act as a team in making 
disbursements and shall sign a certification on the list, that the  
<nl>monies<ol> [moneys] or coupons listed were disbursed to the payees on the 
date shown. The disbursing team members shall be rotated frequently. If the 
superintendent<nl>/director<ol> desires that <nl>a<ol> [the] caseworker be a 
permanent member of the team, the second team member shall be rotated. 
     
  (3) Funds are deposited and invested in accordance with [Directive 1. 16, also 
known as] sec.407.2 of this title (relating to Trust Funds and Personal Effects) 
and [Directive 1.18, also known as] sec.407.3 of this title (relating to Deposit 
and Investment of Funds). Earnings from investment of funds are deposited to the 
<nl>each client's trust fund account<ol> [patient benefit fund]. 
   
  (4) Control accounts for patient trust funds are  <nl>1113xxx0<ol> [1195-XXX0-
00], Patient Trust Fund, and <nl>23110000<ol> [1381-0000-00], Patient<nl>s<ol> 
Trust Fund Payable. The balances of these accounts must equal the total of all 
subsidiary ledger accounts at <nl>the<ol> close of business each month. 
     
  (b) When a client leaves a facility, the balance in his <nl>/her<ol> trust 
fund is refunded. If <nl>the <ol> refund check is outstanding for four months, a 
request that the check be cashed shall be sent to the payee. If no reply is 
received after one additional month, a "stop-pay" order shall be issued and the 
amount restored to the trust fund account. [To avoid accumulating inactive 
account sheets throughout the ledger, the accountant may establish an "inactive" 
sheet in the back of the ledger, with a single line for each inactive account, 
showing client name and amount. Total inactive accounts must be included in 
balancing to control accounts.] 
   
  (c) The trust fund clerk reviews all inactive accounts at least once a year 
and furnishes the chief accountant  <nl>with<ol> a list of all applicable 
account balances for escheat to the state under provisions of current statutes. 
At this time, all balances subject to escheat to the state shall be processed as 
follows: 
 
  (1) identify all accounts held for former clients  <nl>are deceased<ol> [who 
have been dead], on unauthorized leave, discharged, or furloughed for <nl>a 
period<ol> longer than three years; 
   
  (2) mail a letter to the last known address of the client or to donor<nl>.<ol> 
[if last known address of the client is not available, advising] <nl>This letter 
should advise<ol> that the money will be escheated to the state treasurer if not 
claimed within 10 days; 
   
  (3)  <nl>at least 10 days before turning the funds over to the state treasure, 
post<ol> [Post] a list of clients' names and funds to be escheated in the hall 
of the administration building of the facility[, stating the pending action, at 
least 10 days before turning funds over to the state treasurer]. 
     
  (d)  Trust fund ledger entries shall include descriptions or codes indicating 
source of funds and purpose of disbursements. 
 
     
  sec.407.23. [Patient] Benefit Fund <nl>Procedures. <ol> Any donation of funds 
to clients not listed by name, plus funds earned from investment of [patient 
trust funds and funds earned from investment of the] benefit fund, is recorded 
in account <nl>45010000 <ol> [1102-XXXX-XX], Patient Benefit Fund 
<nl>Revenue<ol>. Revenues from vending machines and pay phones located on the 
facility are deposited to this fund when not required to maintain the authorized 
canteen revolving fund balance, except that if the canteen is operated through 
contract with the <nl>Texas Commission for the<ol> Blind [Commission], the 
operator of the canteen is entitled to the vending machine revenues. Reference  
<nl>the department's Fiscal Manual <ol>[sec.401.43 of this title (]relating to 
Vending Machines and Pay Telephones[)]. 
 
  (1) Funds are deposited and invested in accordance with [Directive 1.18, also 
known as] sec.407.3 of this title (relating to Deposit and Investment of Funds). 
   
  (2) Acceptable expenditures from these funds are described in [Directive 1.20, 
also known as] sec.407.4 of this title (relating to Benefit Funds: Use and 
Control). Except when specifically donated for other purposes, funds are only 
expended for education or entertainment of clients. All purchases are made under 
procedures approved by the State Purchasing and General Services Commission 
contained in <nl>the department's Purchasing and Supply Operating Instruction, 
407-2<ol> [Supply Manual]. All cash disbursement vouchers must be supported by 
paid receipts. 
   
  (3) (No change.) 
 
     
  sec.407.24. Processing  23>Warrants [Vouchers] and <nl>Vouchers [Warrants] 
after Death of Payee. 
 
  (a) In the event that a person who had provided goods or services to the state 
dies before having executed the purchase voucher for payment for those goods or 
services, another person may complete the form. The business 
manager<nl>/assistant superintendent for administration <ol> of <nl>the<ol> [a] 
facility, the spouse of the deceased, or other responsible party may complete a 
purchase voucher for goods or services furnished to the state, by adding a 
statement such as "prepared from records of the deceased." 
   
  (b) The business manager<nl>/assistant superintendent for administration <ol> 
must <nl>be satisfied <ol> [satisfy himself] that the claimant to a warrant 
drawn to <nl>the estate of the deceased<ol> [a deceased payee] is entitled to 
the warrant before releasing the warrant. 
   
  (c) A warrant payable to <nl>the estate of the deceased<ol> [a deceased payee] 
is payable by the state treasurer as follows. 
 
  (1) If endorsed by the administrator, a copy of the court certificate of 
appointment must be attached and accompany the warrant to the state treasurer's 
office. 
   
  (2) If endorsed by the payee's heirs, an affidavit shall be signed by two 
reputable persons stating that the endorsers are the sole surviving heirs, and 
are all of age and competent to act for themselves. This affidavit shall be 
attached and accompany the warrant to the state treasurer's office. 
   
  (3) If endorsed by the guardian of an heir, the warrant shall have a certified 
copy of the court certificate of guardianship attached when presented to the 
state treasurer's office for payment. 
   
  (4) One of the heirs may endorse the warrant, attaching a power of attorney or 
certified copy thereof, signed by all of the remaining heirs. The power of 
attorney shall state that the signers are the sole surviving heirs and are all 
of age and competent. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 3, 1993. 
 TRD-9319792 
  Ann Utley 
 Chairman 
 Texas Board of Mental Health and Mental Retardation 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 465-4670 
         
                     
  TITLE 31. NATURAL RESOURCES AND CONSERVATION 
 Part IX. Texas Water Commission 
  Chapter 334. Underground and Aboveground Storage Tanks 
  
  Subchapter H. Interim Reimbursement Program 
 
  31 TAC sec.sec.334.301, 334.302, 334.305, 334.308, 334.309, 334. 310, 334.315, 
334.317, 334.322 
 
  The Texas Water Commission (Commission) proposes amendments to sec.sec.334. 
301, 334.302, 334.305, 334.308, 334.309, 334.310, 334.315, 334.317, and 334. 
322, concerning interim reimbursement provisions of the Commission's Petroleum 
Storage Tank Program. 
 The proposed amendments to sec.334.301 would provide a severability clause 
which would have the effect of severing from the entire subchapter any invalid 
provisions. The proposed amendments to sec.334.302 would clarify existing 
language in the rule and reflect the commission's impending adoption of 
Reimbursable Cost Guidelines. The proposed amendments to sec.334.305 would 
correct a reference to the mailing address of the commission and clarify 
existing language. 
 The proposed amendments to sec.334.308 would change the title of the section to 
read "Allowable Costs and Restrictions on Allowable Costs;" would renumber and 
revise sec.334.308(d), (e), and (f) to make these subsections read more clearly; 
would eliminate sec.334.308 (g) and (h) since the language in subsections (g) 
and (h) is repeated in new subsections (d) and (e); would clarify existing 
language; would provide that subsection (c) is applicable unless otherwise 
specified in new sec.334.308(f) which contains restrictions on allowable costs; 
would update the term "free-product" to "phase-separated product" to reflect 
common industry usage; would provide that prior to March 12, 1993, costs 
associated with the removal of piping, pumps and dispensers associated with 
tanks would be allowable; and would provide that tank removals and permanent 
abandonment of tanks in place performed prior to March 12, 1993, would be 
allowable costs. The most significant change in sec.334.308 is that costs of 
tank removals and abandonment of tanks in place performed on or after March 12, 
1993, will not be reimbursable under the commission's reimbursement program. The 
Petroleum Storage Tank Remediation Fund (PSTR) was established to allow small 
business owners and operators to continue to operate in light of the United 
States Environmental Protection Agency's requirement that tank owners maintain 
financial assurance of $1,000,000 per release occurrence. If tank removals are 
included as allowable costs, the commission estimates that the demand on the 
PSTR fund would exceed $75 million per year (figure based on projected number of 
tank removals per year without regard to balance of fund at any point in time). 
When it reimbursed costs for tank removals, the commission went beyond what the 
legislature required since the PSTR Fund was established to reimburse owners and 
operators for costs of corrective action. In order to preserve the viability of 
the PSTR Fund, reimbursements must be limited to those costs which are actually 
necessary and related to corrective action. Tank removals are not direct costs 
of corrective action. 
 By eliminating tank removals, the commission will also be eliminating an 
existing disparity between tank owners who have a release and those who do not. 
Under the existing rules, only those tank owners who have release occurrences 
can apply to the commission for reimbursement for the tank removal costs. Tank 
owners who have not had releases are ineligible under the PSTR fund. 
 Additional amendments have been made to existing sec.334.308(e), (f), (g), and 
(h) which combine and revise the language in those provisions to create new 
subsections (d), (e), and (f) which relate to hydraulic fluid, spent oil, and 
restrictions on allowable costs, respectively. 
 The proposed amendments to sec.334.309 would reflect the commission's impending 
adoption of Reimbursable Cost Guidelines. The proposed amendments to 
sec.sec.334.310, 334.315, and 334.317 would clarify existing language in the 
rule. The proposed amendments to sec.334.322 would make the rule read more 
clearly and would add definitions for the terms abate, commingled substance, 
corrective action plan, emergency and tank removal. 
 Stephen Minick, Division of Budget and Planning, has determined that for the 
first five years this section is in effect there will be fiscal implications as 
a result of enforcement or administration of the section. The effects on state 
government will be cost savings in the Petroleum Storage Tank Remediation Fund. 
For the most part, this section will incorporate into rule those policies for 
determination of reasonable cost of storage tank remediation which are currently 
in place. The actual savings to be realized from adoption of reimbursement cost 
guidelines in general is dependent on the specific reimbursement requests made 
prospectively and cannot be determined with accuracy at this time. The most 
significant effect of this proposal, however, relates to the change in policy 
for reimbursement of the costs of removing contaminated tanks during the 
corrective action process. Approximately 5,300 tank removal projects are 
anticipated to be undertaken in 1993, of which approximately 3,300 (or 62%) will 
involve leaking tanks potentially eligible for reimbursement under existing 
policy. The average cost anticipated for an average site with three tanks is 
approximately $22,600. The total reduction in obligations against the fund 
associated with tank removals is approximately $74,580,000 annually for the 
estimated 3,300 tank sites. The cost to the owner/operator removing contaminated 
tanks from a typical site would be equivalent to the anticipated savings to the 
state of $22,600. The costs for sites with fewer or greater numbers of tanks 
would vary proportionally. 
 Cost savings realized will enable the commission to maximize the use of 
remediation funds for site cleanups and address the largest number of priority 
cases of contamination. No direct effects on local governments are anticipated 
other than those effects that occur due to ownership or operation of tanks. 
These effects would be the same as for any private tank owner/operator. Local 
governments will benefit generally from the commission's more efficient use of 
funds by having available the maximum amount of revenue from which to make 
requests for reimbursement. Any business requesting reimbursement for cleanup 
costs may realize some effects of the use of these cost guidelines, but, with 
the exception of tank removals, these are not anticipated to affect claims 
approvals significantly more than current practices. 
 Mr. Minick also has determined that for the first five years this section is in 
effect the public benefit anticipated as a result of enforcement of and 
compliance with the section will be more effective use of public funds for 
remediation of actual or potential threats to groundwater or surface water, 
enhanced protection of the public health and water quality and improved 
enforcement of the commission's authority regarding remediation of leaking 
petroleum storage tanks. Small businesses will be affected on the same basis and 
to the same extent as a larger concern. There are no additional costs 
anticipated to persons required to comply with this section as proposed. 
 Comments on the proposal may be submitted to Michael Bame, Petroleum Storage 
Tank Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087. 
Comments will be accepted until 5 p.m. for a period of 30 days following the 
date of this publication. 
 Public meetings will be held to receive public comment. 
 The amendments are proposed under authority of House Bill 1588 (71st 
Legislature, 1989) and House Bill 1214 (72nd Legislature, 1991), which require 
the Commission to establish a groundwater protection program, and to implement a 
reimbursement program to responsible parties who cleanup sites on their own 
initiative and the Texas Water Code (Code), sec.5.103 and sec.5.105, which 
provides the Commission with the authority to adopt any rules necessary to carry 
out its powers and duties under the Code and other laws of the State of Texas, 
and to establish and approve all general policy of the Commission. 
 
 
  sec.334.301. Applicability of this Subchapter. 
 
  (a)-(g) (No change.) 
   
  <nl>(h) If any section, subsection, paragraph, subparagraph, clause, or 
subclause of this subchapter is held invalid, such invalidity shall not affect 
any other section, subsection, paragraph, subparagraph, clause, or subclause 
which can be given effect without the invalid provision, and to this end the 
provisions of this subchapter are declared to be severable. 
 
     
  sec.334.302. General Conditions and Limitations Regarding Reimbursement-
Interim Period. 
 
  (a)-(c) (No change.) 
   
  (d) No expenses for which reimbursement is claimed under this subchapter and 
no expenses which are to be applied to the owner/operator contribution shall be 
subject to reimbursement or applied to the owner/operator contribution unless 
the following conditions have been met. 
 
  (1)-(5) (No change.) 
   
  (6)  The allowable costs for which reimbursement is sought and those which are 
to be applied to the owner/operator contribution must be reimbursable 
[reasonable], as defined in sec.334.309 of this title (relating to 
<nl>Reimbursable<ol> [Reasonable] Costs-Interim Period). 
   
  (7) (No change.) 
     
  (e)-(g) (No change.) 
   
  (h) Nothing in <nl>this<ol> [these] subchapter shall be construed to create an 
entitlement to monies in the petroleum storage tank remediation fund or any 
other fund, and the commission reserves the right to amend or repeal <nl>without 
limitation<ol> any [and all] <nl>of the<ol> provisions of this subchapter, 
including [without limitation], provisions regarding eligibility and allowable 
costs. 
   
  (i)-(l) (No change.) 
 
     
  sec.334.305. Where and How Documents Must be Filed-Interim Period. 
 
  (a) Any application for reimbursement or claim for payment filed pursuant to 
this subchapter shall be filed as follows: 
 
  (1) the original application and one complete copy, plus any fees and 
registration information required pursuant to  s334.310(a) of this title 
(relating to Requirements for Eligibility-Interim Period) submitted to: Texas 
Water Commission, P.O. Box 13087, Austin, Texas 78711-3087, Attention: Petroleum 
Storage Tank  <nl>Division, Reimbursement Section <ol> [Claims]; 
   
  (2)  (No change.) 
     
  (b)-(c) (No change.) 
   
  (d) The date of filing documents with the chief clerk or the commission on 
protested claims for payment shall be controlled by <nl>this subchapter and the 
procedural rules of the commission<ol> [Chapters 261, 263, 265, 267, 269, and 
273 of this title (relating to Introductory Provisions; General Rules; 
Procedures Before Public Hearing; Procedures During Public Hearing; Procedures 
After Public Hearing Before a Hearings Examiner; Procedures After Public Hearing 
Before the Full Commission; and Procedures After Final Decision), to the extent 
applicable]. 
 
     
  sec.334.308. Allowable Costs <nl>and Restrictions on Allowable Costs-Interim 
Period. 
 
  (a)-(b) (No change.) 
   
  (c)  <nl>Unless otherwise specified in sec.334.308(f),<ol> allowable costs 
shall include, but not be limited to, the following: 
 
  (1) (No change.) 
   
  (2) removal of <nl>phase-separated<ol> [free] product; 
   
  (3)  (No change.) 
   
  (4) collection and analysis of surface and subsurface soil and water, 
<nl>phase-separated<ol> [free] product, and vapor samples; 
   
  (5) (No change.) 
   
  (6) removal, storage, treatment, recycling, transport, and disposal of 
<nl>phase-separated<ol> [free] product, sludges, vapors, contaminated soils, 
contaminated water and other wastes and contaminated articles, in accordance 
with applicable laws; 
   
  (7)-(9)  (No change.) 
   
  (10) design of plans for site assessment and remediation; 
   
  (11) acquisition, installation, startup, operation, and maintenance of [site 
assessment and] remediation systems, including monitoring; 
   
  <nl>(12) removal, transport, and disposal of the piping, pumps, and dispensers 
associated with the underground or aboveground tank when removed after October 
1, 1992 and before May 21, 1993; 
   
  <nl>(13)<ol>[(12)]   <nl>tank<ol> removal <nl>(as defined in this subchapter) 
and<ol>, transport, and disposal of the components of the underground or 
aboveground tank, excluding associated piping, pumps, and dispensers, in 
accordance with applicable law when connected with a corrective action measure 
<nl>and performed before May 21, 1993<ol>; 
   
  <nl>(14)<ol>[(13)] permanent abandonment in place of a tank system where 
abandonment in place rather than tank system removal is deemed by the executive 
director to be necessary to avoid destruction of substantial or significant 
surface improvements <nl>and conducted before May 21, 1993<ol>; 
   
  <nl>(15)<ol>[(14)] temporary relocation of utility structures when necessary 
to the performance of corrective action; 
   
  <nl>(16)<ol>[(15)] preparation of technical reports required pursuant to the 
requirements of Subchapter D of this chapter (relating to Reporting of Releases 
and Corrective Action); 
   
  <nl>(17)<ol>[(16)] the fair market value of access to property outside of the 
facility boundaries where such access is necessary for the performance of 
corrective action; 
   
  <nl>(18)<ol>[(17)] the reasonable value of necessary time spent by the 
applicant in planning and administering his own corrective action plan; 
   
  <nl>(19)<ol>[(18)] performance of any corrective action measure which is 
specifically required by an order of the Commission or a written request or 
confirmation of the executive director on or after September 1, 1987; 
   
  <nl>(20)<ol>[(19)] state and federal sales taxes applicable to items which are 
otherwise allowable costs under this section; and 
   
  <nl>(21)<ol>[(20)] any other costs determined by the executive director to be 
allowable in accordance with the provisions of this subchapter. 
     
  <nl>(d) The costs of abatement or corrective action taken in response to a 
release of hydraulic fluid from a hydraulic lift system are allowable costs in 
situations where: 
 
  <nl>(1) a release of hydraulic fluid occurs near the location of a release of 
petroleum products from a petroleum storage tank; 
   
  <nl>(2) the hydraulic fluid was released from a hydraulic lift system located 
at a vehicle service and fueling facility where the hydraulic lift system was 
used in conjunction with and contemporaneously with a vehicle service and 
fueling facility; and 
   
  <nl>(3) upon request by the executive director, the eligible owner or operator 
demonstrates that a release from the hydraulic lift system is not mixed with any 
substance except for petroleum products from a petroleum storage tank system or 
another substance that was contained in the hydraulic lift system owned or 
operated by the person claiming reimbursement. 
     
  <nl>(e) The costs of abatement or corrective action taken in response to a 
release of spent oil from a spent oil tank are allowable costs in situations 
where: 
 
  <nl>(1) a release of spent oil occurs near the location of a release of 
petroleum products from a petroleum storage tank; 
   
  <nl>(2) the spent oil was released from a spent oil tank located at a vehicle 
service and fueling facility where the spent oil tank was used in conjunction 
with and contemporaneously with a vehicle service and fueling facility; and 
   
  <nl>(3) upon request by the executive director, the eligible owner or operator 
demonstrates that a release of spent oil is not mixed with any substance except 
for petroleum products from a petroleum storage tank system or another substance 
that was contained in the spent oil tank owned or operated by the person 
claiming reimbursement. 
     
  [(e) The costs of abating the release from the petroleum storage tank and the 
costs of removal, transport and disposal of the petroleum storage tank, 
including (on or after October 1, 1992) associated piping, pumps and dispensers, 
are the only allowable costs in situations where: 
 
  [(1) a release of a petroleum product from a petroleum storage tank occurs 
near the location of a release of any other substance other than hydraulic oil 
from a hydraulic lift system or spent oil from a motor vehicle, located at a 
vehicle service and fueling facility; and 
   
  [(2) the contamination from the substance which is a petroleum product could 
not reasonably be remediated under a separate and distinct corrective action 
plan from the substance which is not a petroleum product. 
     
  [(f) The costs of abating the release from the hydraulic lift system and the 
costs of removal, transport and disposal of the tank, including (on or after 
October 1, 1992) associated piping and equipment, are the only allowable costs 
in situations where: 
 
  [(1) a release of hydraulic fluid occurs near the location of a release of any 
other substance other than: 
 
  [(A) petroleum products from a petroleum storage tank; 
   
  [(B)  spent oil from a tank located at a vehicle service and fueling facility; 
or 
   
  [(C) another substance which the claimant can prove was contained in the 
hydraulic lift system; and 
     
  [(2) the contamination from the substance which is a hydraulic fluid could not 
reasonably be remediated under a separate and distinct corrective action plan 
from the substance which is not a hydraulic fluid. 
     
  [(g) The costs of abating the release from the spent oil tank and the costs of 
removal, transport and disposal of the tank, including (on or after October 1, 
1992) associated piping and equipment, are the only allowable costs in 
situations where: 
 
  [(1) a release of spent oil occurs near the location of a release of any other 
substance other than: 
 
  [(A) petroleum products from a petroleum storage tank; 
   
  [(B)  hydraulic fluid from a hydraulic lift system; or 
   
  [(C) another substance which the claimant can prove was contained in the spent 
oil tank; and 
     
  [(2) the contamination from the substance which is a spent oil could not 
reasonably be remediated under a separate and distinct corrective action plan 
from the substance which is not a spent oil. 
     
  [(h) In addition to other requirements, no corrective action costs connected 
with the release of spent oil shall be allowable unless the spent oil was 
released from a tank located at a vehicle service and fueling facility, nor 
shall any costs connected with the release of hydraulic fluid be allowable 
unless the hydraulic fluid was released from a hydraulic lift system located at 
a vehicle service and fueling facility. The spent oil tank and/or hydraulic lift 
system must have been used in conjunction with and contemporaneously with a 
vehicle service and fueling facility.] 
   
  <nl>(f)<ol>[(d)] The following types of costs are those which will not be 
considered allowable costs under this subchapter: 
 
  (1)-(2) (No change.) 
   
  (3) removal, transport, and disposal of the piping, pumps, and dispensers 
associated with the underground or aboveground tank when removed prior to 
October 1, 1992, <nl>or on or after March 12, 1993; 
   
  <nl>(4)  tank removal (as defined in this subchapter) and, transport, and 
disposal of the components of the underground or aboveground tank, excluding 
associated piping, pumps, and dispensers, when performed on or after March 12, 
1993; 
   
  <nl>(5) permanent abandonment in place of a tank system where abandonment in 
place rather than tank system removal is deemed by the executive director to be 
necessary to avoid destruction of substantial or significant surface 
improvements when conducted on or after March 12, 1993; 
   
  <nl>(6)<ol>[(4)] loss of income or profits, including without limitation, the 
loss of business income arising out of the review, processing, or payment of an 
application or request for assistance under this subchapter; 
   
  <nl>(7)<ol>[(5)] decreased property values; 
   
  <nl>(8)<ol>[(6)]  bodily injury or property damage; 
   
  <nl>(9)<ol>[(7)] attorney's fees; 
   
  <nl>(10)<ol>[(8)] any costs associated with preparing, filing, and prosecuting 
an application for reimbursement or assistance under this subchapter; 
   
  <nl>(11)<ol>[(9)] the costs of making improvements to the facility beyond 
those that are required for corrective action; 
   
  <nl>(12)<ol>[(10)] costs associated with corrective action performed for any 
purpose where no release of petroleum above action levels is discovered, except 
when the corrective action has been ordered by the Commission; 
   
  <nl>(13)<ol>[(11)] costs of compiling and storing records relating to costs of 
corrective action; 
   
  <nl>(14)<ol>[(12)]  costs of corrective action taken in response to the 
release of a substance which is not a petroleum product as defined in 
sec.334.322 of this title (relating to Subchapter H Definitions); 
   
  <nl>(15)<ol>[(13)] costs of tank integrity testing when it is not specifically 
required by this chapter, requested by the executive director, or ordered by the 
Commission; 
   
  <nl>(16)<ol>[(14)] costs of any corrective action incurred by an owner or 
operator on or after the date that the executive director commences corrective 
action at the owner's or the operator's facility pursuant to sec.334. 321 of 
this title (relating to Corrective Action by the Commission-Interim Period), 
unless authorized in writing by the executive director; 
   
  <nl>(17)<ol>[(15)] costs incurred as a result of a release from a storage tank 
system owned, operated, or maintained by a common carrier railroad; 
   
  <nl>(18)<ol>[(16)] any activities, including those required by this chapter, 
which are not conducted in compliance with applicable state and federal 
environmental laws or laws relating to the transport and disposal of waste; 
[and] 
   
  <nl>(19)<ol>[(17)] interest on the monies expended for an item of corrective 
action<nl>; and<ol>[.] 
   
  <nl>(20) the cost of abatement or corrective action taken in response to a 
release of a commingled substance as that term is defined in sec.334.322 of this 
title (relating to Subchapter H Definitions), excluding subsections (d) and (e) 
of this subsection. 
 
       
  sec.334.309. <nl>Reimbursable  [Reasonable] Costs-Interim Period. 
 
  (a) For purposes of this subchapter, "<nl>Reimbursable <ol> [Reasonable] Cost" 
means that amount or range which is commensurate with the level of corrective 
action necessary to assess and remediate a site, as determined by the executive 
director, based on an evaluation of technical effectiveness and cost 
effectiveness as well as typical costs expected for the particular corrective 
action under review, with respect to the necessary or required scope and 
complexity of the action. 
   
  (b) No cost <nl>shall be reimbursed <ol> [is reasonable] unless it is also an 
allowable cost pursuant to sec.334.308 of this title (relating to Allowable 
Costs-Interim Period). 
 
     
  sec.334.310. Requirements for Eligibility-Interim Period. 
 
  (a)  In order for a person to be an eligible owner or operator under this 
subchapter the following requirements must be met. 
 
  (1) He/she must meet the other requirements of this chapter and must be: 
 
  (A)-(E) (No change.) 
   
  (F) an adjacent landowner who can clearly prove that the land has been 
contaminated by a release of petroleum products from a tank described in 
subparagraph (A) of this paragraph which is not located on said land, and who 
performed corrective action in response to a release of petroleum products from 
such tank, and either: 
 
  (i) (No change.) 
   
  (ii) committed to undertake the entire cleanup of the leak and contamination 
from the tank on his property and on all other property by: 
 
  (I) (No change.) 
   
  (II) performing a site assessment to define the extent of the vertical and 
horizontal contamination at the time of the agreement; 
   
  (III)-(IV) (No change.) 
         
  (2)-(4) (No change.) 
     
  (b)-(e) (No change.) 
   
  (f) Unless otherwise approved by the executive director, all <nl>corrective 
action<ol> [remedial] activities<nl>, including activities<ol> proposed in 
corrective action plans<nl>, <ol> must be approved in writing by the executive 
director prior to implementation [of the plan]. For reimbursement of emergency, 
initial abatement measures and phase- separated product recovery as required by 
sec.334.77 of this title (relating to Initial Abatement Measures and Site 
Check), approval by the executive director is not required prior to 
implementation, unless the emergency action extends beyond 48 hours, then 
written approval will be required for all activities with the exception of 
continuous phase-separated product recovery. 
 
     
  sec.334.315. Protest of Fund Payment Report-Interim Period. 
 
  (a) -(c) (No change.) 
   
  (d) The applicant and the staff of the executive director shall attempt to 
resolve any disputes over the fund payment report informally. If no resolution 
is reached by the staff and the applicant [within 45 days of the date on which 
the executive director receives a protest], the applicant may file a petition 
requesting the commission to grant relief. <nl>The petition shall be filed 
within 45 days of the last informal fund protest meeting. 
 
     
  sec.334.317. Hearing by the Commission-Interim Period.  Following receipt of a 
petition, the commission shall conduct a hearing on the petition. [To the extent 
applicable,]  <nl>T<ol>[t]he proceedings [before, during, and after the hearing] 
shall be governed by <nl>the rules of the commission<ol> [Chapters 261, 263, 
265, 267, 269, and 273 of this title (relating to Introductory Provisions; 
General Rules; Procedures Before Public Hearing; Procedures During Public 
Hearing; Procedures After Public Hearing Before a Hearings Examiner; Procedures 
After Public Hearing Before the Full Commission; and Procedures After Final 
Decision)]. 
 
   
  sec.334.322. Subchapter H Definitions. The following words and terms, when 
used in this subchapter, shall have the following meanings, unless the context 
clearly indicates otherwise. 
   
  <nl>   Abate-To reduce in sufficient degree or intensity the source of the 
release and potential fire, explosion, or vapor hazards such that immediate 
threats to human health no longer exist. This includes the removal of all 
regulated substances from the aboveground or underground tank, and the removal 
of phase-separated products. 
   
   Application preparer -[As used in this subchapter, means] <nl>A<ol>ny person 
responsible for preparing the application for reimbursement. 
   
  <nl>   Commingled substance -A combination or mixture of a petroleum product 
and a non-petroleum product. 
   
   Contract of subrogation-[As used in this subchapter, means] <nl>A <ol> 
document of agreement between the executive director and the eligible tank owner 
and operator which authorizes the executive director to recover costs reimbursed 
from persons who performed corrective action activities at LPST sites. 
   
  <nl>   Corrective action -The act or process of performing assessment or 
remedial activities taken in response to a release of a regulated substance. 
   
   Corrective action plan (remedial action plan) -[As used in this subchapter, 
means] <nl>A<ol> detailed plan developed to address site remediation of soil 
and/or groundwater contamination that provides for adequate protection of human 
health, safety, and the environment. The selection of the most effective and 
efficient remedial method will be dictated by the nature and location of the 
release, the site soils, hydrogeological conditions, and the required degree of 
remediation. The remedial method selection should take into consideration such 
factors as cost, time, and state compliance requirements with each method. The 
title of any report which contains a corrective action plan must include the 
designation "remedial action plan." 
   
   Eligible operator -[As used in this subchapter, means] <nl>A<ol>ny person in 
control of or having the responsibility for the daily operation of a petroleum 
storage tank who meets the eligibility requirements prescribed in sec.334.310 of 
this title (relating to Requirements for Eligibility-Interim Period). 
   
   Eligible owner -[As used in this subchapter, means] <nl>A<ol>ny person who 
meets the eligibility requirements prescribed in  s334.310 of this title 
(relating to Requirements for Eligibility -Interim Period) and who currently 
holds legal possession or ownership of a total or partial interest in a 
petroleum storage tank. For the purposes of this subchapter, where the actual 
ownership of the petroleum storage tank is either uncertain, unknown, or in 
dispute, the fee simple owner of the surface estate where the petroleum storage 
tank is located shall be considered the petroleum storage tank owner, unless it 
can be shown by appropriate documentation (deed reservation, invoice, bill of 
sale, etc.) or by other legally acceptable means that the petroleum storage tank 
is owned by another. "Owner" does not include a person who holds an interest in 
a petroleum storage tank solely for financial security purposes unless, through 
foreclosure or other related actions, the holder of such security interest has 
taken legal possession of the petroleum storage tank. For purposes of this 
subchapter, if it can be demonstrated that a petroleum storage tank has been 
"out of operation" as that term is defined in sec.334.2 of this title (relating 
to Definitions) for a period ten years, the tank shall be considered property of 
the owner of the surface estate. Legislature, Regular Session, Chapter 228, 
effective May 31, 1989. 
   
  <nl>   Emergency-Any existing or potential fire, explosion, or vapor hazards 
which pose an imminent threat to human health and safety, or any imminent threat 
at the point of actual use to drinking water supplies actually being used. 
   
   Initial abatement measures-[As used in this subchapter, means] <nl>T <ol>he 
mitigation of all existing or potential fire, explosion or vapor hazards 
including the removal of phase-separated product to provide adequate protection 
of human health, safety and the environment in emergency situations or other 
situations where emergency actions must be implemented to prevent further 
impacts to the environment. 
   
   Petroleum product -<nl>A product<ol> obtained from distilling and processing 
crude oil and that is capable of being used as a fuel for the propulsion of a 
motor vehicle or aircraft, including motor gasoline, gasohol, other alcohol 
blended fuels, aviation gasoline, kerosene, distillate fuel oil, and #1 and #2 
diesel. The term does not include naphtha-type jet fuel, kerosene-type jet fuel, 
or a petroleum product destined for use in chemical manufacturing or feedstock 
of that manufacturing. 
   
   Prime contractor -[As used in this subchapter, means] <nl>A<ol>ny natural 
person, firm, or any entity responsible for the contracting of any corrective 
action services. 
   
   Prime corrective action specialist-[As used in this subchapter, means] 
<nl>A<ol> natural person, consulting firm, or any entity engaging in corrective 
action services, or acting as coordinator of others engaged in corrective action 
services. 
   
  <nl>   Tank removal-The physical removal of an underground storage tank from 
the subsurface. Tank removals include removal and replacement of surface 
material, backfill excavation, tank removal and disposal, backfilling and 
compaction of excavation, and any other activities typically associated with the 
tank removal process. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 8, 1993. 
 TRD-9319928 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 463-8069 
         
           
  Subchapter M. Reimbursable Cost Guidelines for the Petroleum Storage Tanks 
Reimbursement Program 
 
  31 TAC sec.334.560 
 
  The Texas Water Commission (Commission) proposes new sec.334.560 concerning 
Reasonable Cost Guidelines for the Commission's Petroleum Storage Tank 
Reimbursement Program. 
 The new section is proposed under the Texas Water Code, Chapter 26, Subchapter 
I, as enacted by Senate Bill 779, 70th Legislature, 1987, and as amended by 
House Bill 1588, 71st Legislature, 1989, and House Bill 1214, 72nd Legislature, 
1991, which provides the Texas Water Commission with the authority to establish 
a program to regulate underground and aboveground storage tanks and to 
administer the petroleum storage tank remediation fund, and under the Texas 
Water Code, sec.5.103 and sec.5.105, which authorizes the Texas Water Commission 
to adopt any rules necessary to carry out its powers and duties under the Texas 
Water Code and other laws of the State of Texas, and to establish and approve 
any general policy of the commission. This new section is also proposed under 
the Texas Water Code, sec.26.3573(g), which mandates that the commission make 
the most efficient use possible of money in the petroleum storage tank 
remediation fund and to provide the most effective protection to the environment 
and public health and safety. Section 26.3573(h) provides that the commission 
may implement by rule necessary guidelines for determining amounts that may be 
paid from the petroleum storage tank remediation fund. 
 Proposed new sec.334.560 would adopt the Reimbursable Cost Guidelines to be 
used by the commission to evaluate the reimbursability of claims related to the 
cleanup of contamination from leaking petroleum storage tank sites. The 
Reimbursable Cost Guidelines have been developed to provide owners and operators 
with information regarding how their reimbursement application will be evaluated 
and what the reimbursable costs are for various cleanup activities. This 
document will provide for more consistency in the processing of reimbursement 
applications. The commission will use the guidelines to evaluate and process all 
claims for work performed on or after the effective date of this rule. 
 The guidelines are not intended to set pricing for certain activities or to 
remove an element of competition for the petroleum storage tank industry. 
Rather, the guidelines are intended to allow for a range of costs that will not 
be static, but which can be as dynamic as necessary to support and enhance 
competition. The guidelines cover such cost categories as labor rates, equipment 
and supplies, laboratory costs, remedial action plan preparation, soil and 
groundwater remediation, initial abatement and emergency measures, site 
assessments, site closures, and hauling, disposal, and treatment of waste. Costs 
associated with work performed on or after March 12, 1993, for abandonment of 
tanks in place are not allowable costs and therefore are not included in the 
reimbursable cost guidelines. Costs associated with tank removals, including 
piping, pumps, and dispensers performed on or after March 12, 1993, are not 
allowable costs and are not included in the reimbursable cost guidelines. Tank 
removals include removal and replacement of surface material, backfill 
excavation, tank removal and disposal, backfilling and compaction of excavation, 
and any other activities typically associated with the tank removal process. 
Upon approval by the executive director, the costs associated with tank removals 
can be applied towards the deductible if corrective action is required. This 
change is necessary to enable the commission to preserve the petroleum storage 
tank reimbursement fund for reimbursement of those activities directly 
associated with necessary corrective action. The commission estimates that the 
disallowance for reimbursement of the costs associated with tank removals will 
save the fund up to $75 million dollars in fiscal year 1993. Upon May 21, 1993, 
these Reimbursable Cost Guidelines will supersede and replace the December 1, 
1992, Reasonable Cost Guidelines distributed by the Commission. 
 Stephen Minick, Commission's Budget and Planning Division, has determined that 
for the first five years this section is in effect there will be fiscal 
implications as a result of enforcement or administration of the section. The 
effects on state government will be cost savings in the Petroleum Storage Tank 
Remediation Fund. For the most part, this section will incorporate into rule 
existing policies for determination of reimbursable costs. The cost savings 
relative to these policies is probably not material. Relative to existing 
regulation, however, the cost savings are anticipated to be more significant. 
The actual savings to be realized is dependent on the specific reimbursement 
requests made and cannot be determined with accuracy. Cost savings realized will 
enable the commission to maximize the use of remediation funds for site cleanups 
and address the largest number of priority cases of contamination. No direct 
effects on local governments are anticipated. Local governments will benefit 
generally from the commission's more efficient use of funds by having available 
the maximum amount of revenue from which to pay claims for reimbursement. Any 
business requesting reimbursement for cleanup costs may have some effects from 
the use of these cost guidelines, but these are not anticipated to affect claims 
approvals significantly more than current practices. 
 Mr. Minick also has determined that for the first five years these sections are 
in effect the public benefit anticipated as a result of enforcement of or 
compliance with the sections will be more effective use of public funds for 
remediation of actual or potential threats to groundwater or surface water, 
enhanced protection of public health and water quality and improved enforcement 
of the commission's authority regarding remediation of leaking petroleum storage 
tanks. Small businesses will be affected on the same basis and to the same 
extent as a larger concern. There are no additional costs anticipated to persons 
required to comply with this section as proposed. 
 Comments on the proposal may be submitted to Michael Bame, Petroleum Storage 
Tank Division, Texas Water Commission, P.O. Box 13087, Austin, Texas 78711-3087. 
Comments will be accepted until 5 p.m. for a period of 30 days following the 
date of this publication. 
 Public meetings will be held to receive public comment. 
 The new section is proposed under the Texas Water Code,  s5.103 and sec.5. 105, 
which provide the Texas Water Commission with the authority to adopt any 
sections necessary to carry out its powers and duties under the Texas Water Code 
and other laws of the State of Texas, and to establish and approve all general 
policy of the commission. 
 
 
  sec.334.560. Reimbursable Cost Guidelines. The Texas Water Commission hereby 
adopts the Reimbursable Cost Guidelines <ol> for the Petroleum Storage Tank 
Reimbursement Program which are in effect as of May 21, 1993. Copies of this 
document are available upon request from the Texas Water Commission, Petroleum 
Storage Tank Division, P.O. Box 13087, Austin, Texas, 78711-3087. 
 
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
   
  
       
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 8, 1993. 
 TRD-9319930 
  Mary Ruth Holder 
 Director, Legal Division 
 Texas Water Commission 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 463-8069 
         
             
  TITLE 34. PUBLIC FINANCE 
 Part II. Texas State Treasury 
  Chapter 11. Cigarette and Tobacco Products Tax 
  
  Subchapter B. Cigarette Tax 
 
  34 TAC sec.11.52 
 
  (Editor's Note: The Texas State Treasury proposes for permanent adoption the 
new sec.11.52 it adopts on an emergency basis in this issue. The text of the new 
sec.11.52 is in the Emergency Rules section of this issue.) 
   
  The Texas State Treasury proposes new sec.11.52, concerning the importation of 
200 or fewer cigarettes into the state by persons 18 years of age or older for 
personal use and not for sale. This section provides definitions of terms used 
in the section, defines factual situations to which the section applies, and 
provides for enforcement by Texas Alcoholic Beverage Commission employees at 
ports of entry. 
 John Bell, Deputy Treasurer, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. 
 Mr. Bell also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to stop the importation of tax-free cigarettes by persons 
younger than 18 years of age at ports of entry; and to collect any additional 
taxes due where more than 200 are imported. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed. 
 Comments on the proposal may be submitted to Alicia M. Fechtel, General 
Counsel, Texas State Treasury, P.O. Box 12608, Austin, Texas 78711, (512) 463-
5971, FAX (512) 463-6040. 
 The new section is proposed under the Texas Tax Code, sec.154.024(c) and 
sec.111.002, which provides the treasurer with the authority to adopt rules that 
do not conflict with the laws or the constitution of this state or the United 
States for the enforcement and collection of taxes and other revenue under Title 
2, Texas Tax Code. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 4, 1993. 
 TRD-9319839 
  Alicia M. Fechtel 
 General Counsel 
 Texas State Treasury 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 463-5971 
         
               
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part XIII. Texas Commission of Fire Protection 
  Chapter 421. Standards for Certification 
  
  37 TAC sec.421.1 
 
  The Texas Commission on Fire Protection proposes an amendment to sec.421.1 
(formerly sec.233.1), concerning minimum standards for basic structural fire 
protection personnel. The amendment changes the word "commission" to the "Fire 
Protection Personnel Advisory Committee." The amendment provides the method that 
the meetings may be called, the number of members on the committee, and the 
responsibility of the committee. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Bostick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be clarification of procedures for meetings of the Fire Protection 
Personnel Advisory Committee. There will be no effect on small businesses. There 
is no anticipated economic cost to persons who are required to comply with the 
section as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; and the Texas Government Code, 
sec.419.023, which provides the commission with authority to establish a fire 
protection personnel advisory committee. 
 
 
  sec.421.1. Procedures for Meetings. 
 
  (a) Time and places. The <nl>Fire Protection Personnel Advisory Committee<ol> 
[commission] shall meet at such times and places in the State of Texas as it 
deems proper.  <nl>The Fire Protection Personnel Advisory Committee shall meet 
at least twice each calendar year. 
   
  (b) Meeting called. <nl>Meetings shall be called by the chairman, by the 
commission or upon the written request of five members<ol> [Meetings shall be 
called by the chairman upon his own motion, or upon the written request of five 
members]. 
   
  (c) (No change.) 
   
  <nl>(d) Members. The Fire Protection Personnel Advisory Committee shall 
consist of nine members appointed by the commission. Committee members serve at 
the will of the commission. 
   
  <nl>(e)<ol>[(d)] Officers. Officers of the <nl>Fire Protection Personnel 
Advisory Committee<ol> [commission] shall consist of a chairman, vice-chairman, 
and secretary. The <nl>committee <ol> [commission] shall elect its officers from 
the appointed members at its first meeting and thereafter at its first meeting 
<nl>following January 1, of each year or upon the vacancy of an office, <ol> 
[succeeding new appointments to fill regular terms.] 
   
  <nl>(f) Responsibility. The Fire Protection Advisory Committee shall review 
commission rules relating to fire protection personnel and fire departments and 
recommend changes in the rules to the commission. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319946 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
             Chapter 423. Fire Suppression 
  
  Subchapter A. Minimum Standards for Structure Fire Protection Personnel 
Certification 
 
  37 TAC sec.423.1 
 
  The Texas Commission on Fire Protection proposes an amendment to sec.423.1 
(formerly sec.233.9), concerning minimum standards for basic structural fire 
protection personnel. The amendment adds the completion of the approved Basic 
Volunteer Fire Fighter Curriculum as specified in Chapter 1, of the commission's 
document titled "Commission Volunteer Certification Curriculum Manual" as an 
option for being certified as structure fire protection personnel. The amendment 
also provides criteria for approval of basic fire suppression programs from 
other jurisdictions, including out-of-state and military programs, to determine 
equivalency. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mr. Bostick also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be a clearer understanding of the requirements for certification as 
structure fire protection personnel. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed; however, out-of-state and military 
personnel may be required to furnish more detailed documentation than current 
rules require. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendment is proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its power and duties; Texas Government Code, 
sec.419.022(a)(5), which provides the commission with authority to establish 
minimum standards for admission to employment as fire protection personnel; 
Texas Government Code, sec.419.032(d), which provides the commission with 
authority to certify persons that are qualified as fire protection personnel; 
and Texas Government Code, sec.419.075, which provides the commission with 
authority to certify volunteers under Subchapter B. 
 
 
  sec.423.1. Minimum Standards for Basic Structural Fire Protection Personnel. 
 
  (a) (No change.) 
   
  (b) All full-time, full-paid employees of any local government entity, who are 
assigned structure fire protection duties must be certified by the commission. 
In order to be certified, structure fire protection personnel must: 
 
  (1) complete a commission-approved basic structure fire suppression program 
and successfully pass the commission examination <nl>as specified in Chapter 
439, of this title, pertaining to Examinations for Certification <ol> prior to 
being assigned to fire suppression duties. An approved basic structure fire 
suppression program shall consist of one of the following: 
 
  (A) completion of the commission-approved Basic Fire Suppression Curriculum as 
specified in Chapter 1, of the commission's document titled "Commission 
Certification Curriculum Manual", as adopted by reference in sec.443.1 of this 
title (relating to Basic Fire Suppression Curriculum) [and successfully pass the 
commission examination as specified in Chapter 439, of this title, pertaining to 
Examinations for Certification, within one year prior to the date of assignment 
to fire suppression]; or 
   
  <nl>(B) completion of the commission-approved Basic Volunteer Fire Fighter 
Curriculum as specified in Chapter 1, of the commission's document titled 
"Commission Volunteer Certification Curriculum Manual", as adopted by reference 
in sec.473.3 of this title (relating to Basic Volunteer Fire Fighter Curriculum) 
and successfully pass the commission examinations as specified in Chapter 479 of 
this title (relating to Examinations for Volunteer Fire Fighter Certification). 
   
  <nl>(C)<ol>[(B)] completion of an out-of-state training program deemed 
equivalent to the commission-approved Basic Fire Suppression Curriculum[,] 
<nl>and <ol> documentation of one years' experience as a full-time/full-paid 
fire fighter [and successfully pass the commission examination as specified in 
sec.439.17(b) of this title (relating to Testing for Proof of Proficiency)]; or 
   
  <nl>(D)<ol>[(C)] completion of a military training program deemed equivalent 
to a commission-approved basic fire suppression curriculum[,] <nl>and <ol> 
documentation of one years' experience as a full-time/full-paid fire fighter 
[and successfully pass the commission examination as specified in sec.439.17(b) 
of this title;]<nl>. 
     
  (2)-(3) (No change.) 
     
  (c) <nl>A basic fire suppression program from another jurisdiction may be 
submitted to the commission for approval as required in the Texas Government 
Code, sec.419.032(d), Appointment of Fire Protection Personnel. These programs 
include out-of-state and military programs and shall be deemed equivalent by the 
commission if the subjects taught, subject content, hours of training in a 
subject, and total hours of training meet or exceed those contained in Chapter 1 
of the commission's document titled "Commission Curriculum Certification 
Manual", as adopted by reference in sec.443.1 of this title (relating to Basic 
Fire Suppression Curriculum).<ol> [All questions of training equivalency will be 
decided by the commission.] 
   
  (d)-(e) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319947 
  Jack Woods 
 General Counsel 
 Texas Commission of Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
               Chapter 425. Fire Protection Instructor 
  
  Subchapter A. Instructor Certification 
 
  37 TAC sec.425.5, sec.425.7 
 
  The Texas Commission on Fire Protection proposes amendments to sec.425.5 
(formerly sec.233.85) and sec.425.7 (sec.233.87), concerning fire protection 
instructors including advanced and master level instructor certifications. The 
amendment to sec.425.5 deletes the language requiring an advanced instructor to 
be working full time as an instructor or training officer. The amendment to 
sec.425.7 changes the prerequisites required to obtain a master fire protection 
instructor certification to require master certification in another discipline. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Bostick also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections as proposed will be to allow more fire fighters to obtain advanced 
levels of certification without being full-time instructors. The change to the 
requirements for a master instructor certificate will also encourage persons 
holding master certificates in other disciplines to become instructors. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The amendments are proposed under Texas Government Code,  s419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its powers and duties; and Texas Government Code, 
sec.419.028(b)(3), which provides the commission the authority to certify 
persons as qualified fire protection personnel instructors under conditions the 
commission prescribes. 
 
 
  sec.425.5. Minimum Standards for Advanced Fire Protection Instructor 
Certification (Equivalent to NFPA 1041, Instructor III Level). In order to be 
certified as an Advanced Instructor the individual must: 
 
  (1) (No change.) 
   
  (2) be a member of a fire department, as defined in  s421.5 of this title 
(relating to Definitions), and have as a minimum five years of experience[, 
devoting full time to fire training and related responsibilities]; 
   
  [(3) be a full-time instructor or training officer;] 
   
  <nl>(3)<ol>[(4)] provide documentation that they are knowledgeable in the 
subjects that they will teach and successfully complete the following 
commission-approved instructor training courses: 
 
  (A) a commission-approved Instructional Aids course consisting of at least 30 
class hours or three college semester hours or the National Fire Academy course, 
Instructional Methodology, can be substituted for Methods of Teaching and 
Instructional Aids; and 
   
  (B) a commission-approved course in Analysis and Course Making consisting of 
at least 30 class hours or three college semester hours; and 
   
  (C) a commission-approved course in Organization and Use of Instructional 
Materials consisting of at least 30 class hours or three college semester hours. 
(The National Fire Academy course Course Development can be substituted for 
Analysis and Course Making and Organization and Use of Instructional Material.) 
 
       
  sec.425.7. Minimum Standards for Master Fire Protection Instructor 
Certification (Equivalent to NFPA Standard 1041, Instructor IV Level).  <ol> In 
order to be certified as a Master Instructor the individual must: 
 
  (1) (No change.) 
   
  (2) <nl>hold as a prerequisite a Master Structural Fire Protection Personnel 
Certification, a Master Aircraft Crash and Rescue Fire Protection Personnel 
Certification, a Master Inspector Certification, or a Master Fire and Arson 
Investigator Certification<ol> [possess an associate degree or 60 semester hours 
in fire science or any other college program which includes at least 15 semester 
hours of leadership-type programs, such as: effective speaking, human relations, 
effective communication management, fire administration, parliamentary 
procedure, and other equally related subjects; and]; 
   
  [(3) be a full-time instructor or training officer.] (Instructors who want to 
meet NFPA Standard 1041 for Instructor IV level must first meet all requirements 
for NFPA 1041, Instructor III level.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319948 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
               Chapter 429. Minimum Standards for Fire Inspectors 
  
  37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11, 429.13, 429.15, 
429.17 
 
  (Editor's note: The text of the following sections proposed for repeal will 
not be published. The sections may be examined in the offices of the Texas 
Commission on Fire Protection or in the Texas Register office, Room 245, James 
Earl Rudder Building, 1019 Brazos Street, Austin.) 
   
  The Texas Commission on Fire Protection proposes the repeal of sec.sec.429.1 
(formerly 233.93), 429.3 (233.95), 429.5 (233.97), 429.7 (233.99), 429.9 (233. 
101), 429.11 (233.103), 429.13 (233.105), 429.15 (233.107), and 429.17 (233. 
109), concerning minimum standards for fire inspectors. The repealed sections 
will be replaced with new sections concerning the same subject matter with an 
effective date of January 1, 1994. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the repeals are in effect there will be no fiscal 
implications for state government as a result of enforcing or administering the 
repeals. The fiscal implications for local government resulting from the new 
sections which replace the repealed sections are described in the preamble for 
those new sections published in the same issue of the Texas Register. 
 Mr. Bostick also has determined that for each year of the first five years the 
repeals are in effect the public benefit anticipated as a result of enforcing 
the repeals will be elimination of obsolete language and increased competency of 
persons assigned fire inspection duties, especially in smaller cities. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the repeals as proposed. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The repeals are proposed under the Texas Government Code, sec.419.008, which 
provides the Texas Commission on Fire Protection with authority to adopt rules 
for the administration of its powers and duties; and the Texas Government Code, 
sec.419.022(a)(5) which provides the commission with authority to establish 
minimum standards for admission to employment as fire protection personnel and 
for advanced or specialized fire protection personnel positions. 
 
 
  sec.429.1. Minimum Standards for Fire Prevention Personnel. 
 
   
  sec.429.3. Inspector Certification Level Based on Population. 
 
   
  sec.429.5. Minimum Standards for "C" Inspector Certification. 
 
   
  sec.429.7. Minimum Standards for "B" Inspector Certification. 
 
   
  sec.429.9. Minimum Standard for "A" Inspector Certification. 
 
   
  sec.429.11. Minimum Standards for Intermediate Inspector Certification. 
 
   
  sec.429.13. Minimum Standards for Advanced Inspector Certification. 
 
   
  sec.429.15. Minimum Standards for Master Inspector Certification. 
 
   
  sec.429.17. Minimum Standards for Fire Fighter/Fire Inspector Limited 
Certification. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 5, 1993. 
 TRD-9319950 
  Jack Woods 
 General Counsel 
 Texas Commission on Fire Protection 
    Earliest possible date of adoption: April 12, 1993 
 For further information, please call: (512) 873-1700 
         
         
  37 TAC sec.sec.429.1, 429.3, 429.5, 429.7, 429.9, 429.11 
 
  The Texas Commission on Fire Protection proposes new sec. s429.1, 429.3, 
429.5, 429.7, 429.9, and 429.11, concerning minimum standards for fire 
inspection personnel. The new sections replace repealed sections pertaining to 
the same subject matter and have a proposed effective date of January 1, 1994. 
New  s429.1 requires fire inspector certification of all full-time, fully paid 
local government employees who are assigned fire code enforcement duties. New 
sec.429.3 concerning standards for Basic Fire Inspector Certification replaces 
current language where the number of training hours depends on city population 
with a single basic curriculum requirement consisting of either a 226-hour 
course or possession of an associate degree, including 21 semester hours in 
specified fire protection and prevention courses. The new sections pertaining to 
intermediate, advanced and master certification provide requirements consistent 
with higher levels of structure certification. 
 Alton Bostick, standards and licensing division director, has determined that 
for the first five-year period the sections are in effect there will be no 
fiscal implications for state government as a result of enforcing or 
administering the sections except state agencies that employ fire inspection 
personnel. There will be fiscal implications for local government for training 
of new fire prevention personnel depending on population of 70,000 or less, 
training requirements are increased from 140 class hours to 226 class hours. In 
cities with populations of 70,001 to 250,000, training is increased from hours 
to 226. Finally, in cities with population greater than 25 4>0,000, the training 
requirement is increased from 200 hours to 226. The increased number of training 
hours is mitigated by providing for credit in subjects of the basic fire 
inspector curriculum totalling 52 hours for individuals with basic structure 
fire protection personnel certification, as these same subjects are included in 
the Basic Fire Suppression Curriculum. Therefore, in cities which assign persons 
previously certified in structure fire protection, there will be a net reduction 
of training hours in cities with population over 250,000; only four additional 
hours for cities with population of 70,001 to 250,000; and only a net 34-hour 
increase for cities with population of 70,000 or less. Based on the number and 
distribution of current inspector certifications, the increase in training hours 
will adversely affect only 15% of new inspectors. The exact cost of 
approximately one additional week of training will vary depending on the source 
of training and the compensation of the inspector trainee. Mr. Bostick also has 
determined that there will be no impact on local employment as a result of 
enforcing and administering the new sections. 
 Mr. Bostick also has determined that for the first five years the sections are 
in effect the public benefit anticipated as a result of enforcing the sections 
will be increased competency of persons assigned fire inspection duties 
particularly in smaller cities which often face the same hazards as larger 
cities, as well as more effective for fire prevention services for the public. 
In addition, the elimination of the one-year experience requirement permits fire 
inspectors to be recognized as expert witnesses upon completion of training. 
There will be no effect on small businesses. The cost to persons will be nominal 
because most departments provide training for their fire inspectors, although 
additional time may be required of some individuals. 
 Comments on the proposal may be submitted to Jim Fiero, Chairman, Fire 
Protection Personnel Advisory Committee, P.O. Box 2286, Austin, Texas 78768-
2286. 
 The new sections are proposed under the Texas Government Code, sec.419.008, 
which provides the Texas Commission on Fire Protection with authority to adopt 
rules for the administration of its powers and duties; and the Texas Government 
Code, sec.419.022(a)(5), which provides the commission with authority to 
establish minimum standards for admission to employment as fire protection 
personnel and for advanced or specialized fire protection personnel positions. 
 
 
  sec.429.1. Minimum Standards for Fire Inspection Personnel. 
 
  (a) The effective date of this chapter shall be January 1, 1994. All full-
time, full-paid personnel, as employed by a government entity who are assigned 
fire code enforcement activities, must be certified by the Commission as fire 
inspectors. 
   
  (b) Fire prevention inspection personnel must complete all requirements for 
certification and be certified within one year of initial appointment to such 
position. 
   
  (c) All full-time, full-paid employees of a governmental entity who are 
assigned fire code enforcement duties, must be certified, as a minimum, as 
either: 
 
  (1) a Basic Fire Inspector as specified in sec.429.3 of this title (relating 
to Minimum Standards for Basic Fire Inspector Certification); or 
   
  (2) a Fire Fighter/Fire Inspector Limited as specified in sec.429.11 of this 
title (relating to Minimum Standards for Fire Fighter/Fire Inspector Limited 
Certification). 
     
  (d) Individuals who currently hold an "A", "B", or "C" Inspector certification 
on the effective date of this section, will upon renewal or reissue, be issued a 
Basic Fire Inspector Certification. 
   
  (e) All individuals holding any level of fire inspector certification shall be 
required to comply with the continuing education requirements in sec.441.13 of 
this title (relating to Continuing Education Requirements for Fire Inspection 
Personnel). 
   
  (f) Code enforcement is defined as the enforcement of laws, codes, and 
ordinances of the authority having jurisdiction pertaining to fire prevention. 
 
     
  sec.429.3. Minimum Standards for Basic Fire Inspector Certification. 
 
  (a) The effective date of this section shall be January 1, 1994. Training 
programs that are intended to satisfy the requirements of this section, that are 
started after the effective date of this section, must meet the curriculum, 
competencies, hours, and examination requirements of this section. 
   
  (b) In order to be certified by the commission as a Basic Fire Inspector an 
individual must: 
 
  (1) complete a commission-approved fire inspection program and successfully 
pass the commission examination as specified in Chapter 439 of this title 
(relating to Examinations for Certification) within one year from the date of 
initial appointment to the position. An approved basic fire inspection program 
shall consist of one of the following: 
 
  (A) completion of the commission approved Basic Fire Inspector Curriculum as 
specified in Chapter 4, of the commission's document titled "Commission 
Certification Curriculum Manual", as adopted by reference in sec.443.7 of this 
title (relating to Basic Fire Inspector Curriculum); or 
   
  (B) successful completion of an out-of-state training program which has been 
submitted to the commission for evaluation and found to meet the minimum 
requirements as listed in the Basic Fire Inspector Curriculum as specified in 
Chapter 4, of the commission's document titled "Commission Certification 
Curriculum Manual" as adopted by reference in sec.443.7 of this title; or 
   
  (C) possession, as a minimum of an Association Degree fr